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2011 DIGILAW 240 (ORI)

Sarat Kumar Dash v. State of Orissa

2011-04-20

B.N.MAHAPATRA, V.GOPALA GOWDA

body2011
JUDGMENT V. GOPALA GOWDA, C.J. — This appeal filed by the appellant-opposite party no.5 questioning the correctness of the order dated 24.11.2009 passed by the learned Single Judge in W.P.(C) No. 4882 of 2007* allowing the writ petition filed by respondent no.5 with a direction that the appellant be removed from service and in his place respondent no.5 be given appointment as Gram Rojagar Sevak in respect of Solabandh Gram Panchayat in the district of Bolangir urging various facts and legal contentions. 2.The facts of the case may be briefly stated for the purpose of appreciating the rival legal contentions urged at the Bar in this appeal with a view to find out as to whether the impugned order warrants any interference by this Court in exercise of appellate jurisdiction bearing in mind that substantial question that would arise in this appeal may be required to be answered. 3.Pursuant to the advertisement under Annexure-3 dated 28.9.2006 published in the daily English Newspaper, both the appellant and respondent no.5 submitted their applications for the post of Multi Purpose Assistance (for short, “Gram Rojagar Sevak”) in respect of Solabandh Gram Panchayat under Patnagarh Block. As per the advertisement, the Minimum qualification for the said post was 10+2 passed. Further, it was stated therein that the applicants of commerce stream and applicants with computer proficiency of ‘O’ level with use of Oriya language in Computer would be preferred. It is the case of respondent no.5 that he had passed +2 Arts in C.H.S.E. Examination in the year 2002 having secured 46.89 marks and he had completed 12 months’ Diploma Course in Computer Application. Although he was qualified for the post the authorities instead of selecting him selected one Bidyadhar Majhi who was ineligible to the post. Aggrieved of the said selection, respondent no.5 made representation to respondent no.3-Project Director, D.R.D.A., Bolangir, but the same was not considered. Therefore, he filed W.P.(C) No. 16809 of 2006 before this Court, which came to be disposed of on 27.1.2007 with direction to finalize the representation within one month from the date of receipt of that order. Respondent no.3 instead of considering the case of respondent no.5 gave appointment to the present appellant though he had no requisite qualification to the post. Therefore, respondent no.5 filed W.P.(C) No. 4882 of 2007 in which the impugned order was passed. Respondent no.3 instead of considering the case of respondent no.5 gave appointment to the present appellant though he had no requisite qualification to the post. Therefore, respondent no.5 filed W.P.(C) No. 4882 of 2007 in which the impugned order was passed. The writ petition was opposed by the appellant justifying the selection and appointment to the post in question contending inter alia that he passed Upashastri from Sri Jagannath Sanskrit Viswa Vidyalaya, Puri which is equivalent to 10+2 Examination conducted by the Council of Higher Secondary Education, Orissa as per the Regulations, 1982 published in the Extraordinary Orissa Gazette dated 21st October, 1982. Further, it was stated that the said Regulations were framed in pursuance of Sub-section (2) of Section 30 of the Orissa Higher Secondary Education Ordinance, 1982. Regulation 12 empowers the Council to pass resolution treating a particular course as equivalent to 10+2 in its ordinary meeting of the council and he has placed reliance upon Annexure-C, the notification No. 1526 dated 18th February, 1986, wherein it is mentioned that the Equivalence Committee of the Council has recognized the Upashastri Course of the said institution as equivalent to the Humanities Stream of Higher Secondary Education Orissa subject to the approval of the Council. The same has been approved by the Council of Higher Secondary Education, Orissa in its meeting held on 27.7.2009 at Item No. 6, wherein the said item was moved by Dr. Pravat Kumar Routray, and the Chairman and Members present in the meeting approved the same and the equivalence resolution was passed giving retrospective effect vide notification dated 18.2.1986, which is enclosed to the said resolution. Therefore, it is submitted that the appellant has got the equivalent certificate approved by the Council. Hence, Upashastri course completed by the appellant is equivalent to 10+2, which is the qualification prescribed by the post in question. Therefore, it is contended by the learned counsel for the appellant that the same was brought to the notice of the learned Single Judge, but the same was not accepted by him. Therefore, the writ petition filed by respondent no.5 was allowed holding that respondent no.5 secured the highest mark in +2 level and the appellant was wrongly selected, which is erred in law. Hence, he has filed the present appeal. Therefore, the writ petition filed by respondent no.5 was allowed holding that respondent no.5 secured the highest mark in +2 level and the appellant was wrongly selected, which is erred in law. Hence, he has filed the present appeal. 4.In the writ petition, it was submitted by the learned counsel for the petitioner that there is nothing to indicate that the Equivalence Committee declared Upashastri course to be equivalent to 10+2 pass prior to 28.10.2006. Therefore, the learned Single Judge held that the appellant cannot claim that he had passed 10+2 or any equivalent examination thereof till 28.10.2006 and as such he was not eligible to the post at all. 5.It is contended by the learned counsel for the appellant that learned Single Judge has erroneously held that Equivalence Committee vide notification dated 23.5.1996 (wrongly mentioned as “3.5.1996” in the writ petition) declared Acharya as equivalent in M.A. in Sanskrit and appellant passed Acharya in the year 2006 and was placed in 1st class. M.A. in Sanskrit being much higher than 10+2, his appointment cannot be declared as illegal. The said contention was not accepted by the learned Single Judge. Further, learned Single Judge failed to take into consideration the fact that appellant had undergone 12 month’s course in specified curriculum with Grade B+2 and passed PGDCA from Patnagarh and was issued with a certificate in that respect under Annexure-B/5 produced in the writ petition. Despite the same, learned Single Judge did not accept the computer qualification of the appellant, though he secured more mark than respondent no.5. Further, learned Single Judge has erroneously placed reliance upon the decision of the Division Bench of this Court in W.A. No. 13 of 2008 wherein it has been observed that until the Equivalence Committee declared that Upashastri was equivalent to 10+2, it could not be held that a candidate passing Upashastri would be treated to have passed 10+2. Even if such a candidate passed Acharya and it was declared by the Equivalent Committee to be equivalent with M.A. in Sanskrit earlier than the last date fixed for submission of the application, it cannot help him to get a job meant for 10+2 pass candidate. Even if such a candidate passed Acharya and it was declared by the Equivalent Committee to be equivalent with M.A. in Sanskrit earlier than the last date fixed for submission of the application, it cannot help him to get a job meant for 10+2 pass candidate. Further, learned Single Judge rejected the claim of the appellant with regard to possessing the PGDCA certificate in Computer Application on the ground that the same was obtained on the 10th day of November, 2006, i.e., after the last date fixed for submission of the application for the post of Gram Rojagar Sevak. Further, learned Single Judge placing reliance upon the earlier order passed by this Court in W.P.(C) No. 16809 of 2006 accepted the case of the respondent no.5 by granting relief erroneously. Hence, learned counsel for the appellant submits that non-consideration of the relevant aspect of equivalence resolved by the Equivalence Committee of the Council in its meeting held on 27.7.2009 recognizing the Upashastri course of Shri Jagannath Sanskrit Viswa Vidyalaya, Puri as equivalent to the Humanities Stream of Higher Secondary Education, Orissa subject to the approval of the Council, which has been approved by the Council with retrospective effect, rendered the impugned order vitiated in law and substantial question of law would arise for consideration, which should be answered in favour of the appellant. 6.In view of the rival legal contentions urged, the points that would arise for consideration by this Court are as follows: i)Whether the learned Single Judge was right in setting aside the selection/appointment of the appellant for the reason that no material was produced to satisfy the Court that Upashastri Examination is equivalent to 10+2 Examination conducted by the Council of Higher Secondary Education, Orissa? ii)What order? 8.The first point is required to be answered in favour of the appellant for the following reasons. Due to non-production of the resolution No. 7079 dated 27.7.2009 passed by the Equivalence Committee before the learned Single Judge, he has not accepted the case pleaded by the appellant and granted relief to him. In exercise of power under Section 14(2) of the Orissa Higher Secondary Education Act, 1982, the Chairman of the Council is appointed by the Government. Due to non-production of the resolution No. 7079 dated 27.7.2009 passed by the Equivalence Committee before the learned Single Judge, he has not accepted the case pleaded by the appellant and granted relief to him. In exercise of power under Section 14(2) of the Orissa Higher Secondary Education Act, 1982, the Chairman of the Council is appointed by the Government. The executive authority of the Council shall vest in the Chairman to see that the provision of the Act and the Regulations made thereunder are faithfully carried out and he shall have all powers necessary for that purpose. Regulation 4 of the Orissa Higher Secondary Education Regulations, 1982 (for short, “the Regulations”) confers powers upon the Executive Committee in conducting Annual meeting of the Council. Regulation 12 (1) of the Regulations confers power upon the Council regarding the business transacted but in the ordinary meeting of the Council the same shall be placed on the agenda following sub-clauses (a) and (b) of Regulation 12 (1) of the Regulations. In this regard it is necessary for us to refer to the Notification No. 1525 dated 18 February, 1986, which is at Annexure-C to this writ appeal. It says that CHSE Equivalence Committee of the Council has recognized the Upashastri Course of Shri Jagannath Sanskrit Viswa Vidyalaya, Puri as equivalent to the Humanities Stream of Higher Secondary Education, Orissa subject to the approval of the Council. That very subject was in the agenda in the ordinary meeting dated 27.7.2009 of the Council at Item No. 6. The same was moved by Dr. Pravat Kumar Routray, which was approved by the Chairman and Members of the Council. The proceedings on the said point in the meeting held on the aforesaid date is extracted as hereunder: “Dr. Pravat Kumar Routray :- Chairman Sir & Hon’ble members, I, Dr. Pravat Kumar Routray, on behalf of the C.H.S.C., Orissa beg to move that the Council do consider and approve the equivalency of “UPASHASTRI’ Examination conducted by Sri Jagannath Sanskrit Viswavidyalaya, Puri as equivalent to humanities stream conducted by the Council of Higher Secondary Education, Orissa with retrospective effect from the date of its notification i.e. 18.02.1986. Pravat Kumar Routray, on behalf of the C.H.S.C., Orissa beg to move that the Council do consider and approve the equivalency of “UPASHASTRI’ Examination conducted by Sri Jagannath Sanskrit Viswavidyalaya, Puri as equivalent to humanities stream conducted by the Council of Higher Secondary Education, Orissa with retrospective effect from the date of its notification i.e. 18.02.1986. The copy of the said notification is enclosed for kind reference at Annexure-C. After proper examination of the course of “Upashastria” of Sri Jagannath Sanskrit Viswavidyalay, Puri the Equivalence Committee and Academic Committee of the Council have recognized and recorded equivalence of the said course to that H.S. course conducted by the Council of Higher Secondary Education, Orissa in anticipation of approval of the Council. Now I request the house to consider and approve the same. Chairman:- Thank you Dr. Routray, Is it seconded? Dr. S. Pujari:- I, Second it. Chairman :- Is it approved? Members:- Yes, Yes approved. Chairman :- Thank you. Now all the items of the day are over.” 9.On perusal of the said proceedings of the meeting, it appears that the recognition made by the Equivalence Committee of the Council vide Notification No. 1525 dated 18.2.1986 the point in issue was brought as agenda by the Committee before the Council and the same has been approved giving effect to the resolution retrospectively. Therefore, qualification of Upashastri Examination from the aforesaid institution was declared as equivalent to the Humanities Stream of Higher Secondary Education, Orissa as 10+2, which is equivalent to the qualification prescribed to the post in question. Therefore, the appellant herein has acquired eligible qualification in applying to the post and he has also passed Computer application. Apart from that, he had passed Acharya, which is equivalent to M.A. in Sanskrit as per Notification dated 3.5.1996. The said qualification has not been accepted by the learned Single Judge for the reason that the copy of the Notification No. 1525 dated 18th February, 1986 of the CHSE Equivalence Committee of the Council recognizing the Upashastri Course of Shri Jagannath Sanskrit Viswa Vidyalaya, Puri as equivalent to the Humanities Stream of Higher Secondary Education, Orissa was subject to the approval of the Council. The resolution approving the recommendation of the Equivalence Committee for his consideration was not made available to the learned Single Judge. The resolution approving the recommendation of the Equivalence Committee for his consideration was not made available to the learned Single Judge. 10.That very point was in the agenda in the ordinary meeting dated 27.7.2009 of the council at Item No.6. The same was moved by Dr. Pravat Kumar Routray, which was approved by the Chairman and members of the Council and given effect retrospectively. 11.In view of the proceedings of the ordinary meeting dated 27.7.2009 of the Council at Item No.6 the relevant portion of which has been extracted above, we are satisfied that the appellant had acquired the requisite qualification prescribed to the post in question. The impugned order has been passed placing reliance upon the Division bench judgment in W.A. No. 13 of 2008 wherein it was held that until the Equivalence Committee declared Upashastri was equivalent to 10+2 Examination conducted by the Council of Higher Secondary Education, Orissa it cannot be held that the candidate passing Upashastri would be treated to have passed 10+2. Parties in the said case did not produce the resolution dated 27.7.2009 passed by the Council. Therefore, the aforesaid observation is made. In view of the said resolution dated 27.7.2009 of the Council, the decision of the learned Single Judge is bad in law and is liable to be set aside. Therefore, we quash the said selection holding that the appellant herein has secured more marks than respondent no.5. Therefore, the appellant must succeed in this appeal. 12.Accordingly, the appeal is allowed. The impugned order is hereby quashed. If the decision of the learned Single Judge for want of stay is given effect to, the same shall be recalled and order of reinstatement of the appellant to the post in question shall be issued forth with. B.N. MAHAPATRA, J.I agree. Appeal allowed.