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2014 DIGILAW 31 (ORI)

Binod Bihari Bag v. State of Orissa

2014-01-13

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. : In this writ petition the petitioner, being an applicant for being engaged as Sikshya Sahayak in the B.A. B.Ed. category pursuant to the advertisement issued by the Collector, Jharsuguda, opposite party No.2, on 14.9.2011, seeks the relief of quashing the final merit list and selection letter issued in favour of Rajashri Behera, opposite party No.5, for engagement as Sikshya Sahayak. His further prayer is that instead of opposite party No.5, he should be engaged and necessary direction should be issued to opposite party No.2. 2.The petitioner being a member of the Scheduled Tribe untrained candidate applied for the post of Trained Graduate Arts Teacher (Sikshya Sahayak) as per the advertisement issued by opposite party No.2 bearing No.1138 dated 14.9.2011. The petitioner having B.A. qualification applied for the post of Trained Graduate Arts Teacher along with other applicants as per the advertisement. It is contended that the petitioner, as per the aforesaid advertisement, he applied for the post of Trained Graduate Arts (Sikshya Sahayak) meant for Physically Handicapped. The petitioner is an untrained Physically Handicapped Graduate candidate and his candidature was to be considered for the aforesaid post if no other trained physically handicapped candidate were available in the district of Jharsuguda as per the terms of the advertisement. 3.It is further contended that after scrutiny the petitioner and opposite party No.6 remained at Sl. Nos.2 and 20 respectively. Simultaneously draft merit list of B.A. with B.Ed. trained for the aforesaid post was published by opposite party No.5 in which opposite party No.5 was at Sl. No.26. After scrutiny, the final draft selection list was published on 12.12.2011 in which the name of the petitioner was deleted and opposite party Nos.5 and 6 were placed at Sl. Nos.9 and 17 for the post of B.A.B.Ed. Arts Teacher (Sikshya Sahayak). The petitioner contends that as per advertisement if no trained physically handicapped candidate is available in the concerned district, applications of the S.C. and S.T. candidates shall be taken into consideration for selection of B.A.B.Ed. Arts Teacher (Sikshya Sahayak). At the time of final selection, opposite party No.5, who belongs to S.E.B.C. category, was allowed to be engaged for B.A., B.Ed., Arts Teacher (Sikshya Sahayak) meant for physically Handicapped and engagement order was also issued in her favour. Arts Teacher (Sikshya Sahayak). At the time of final selection, opposite party No.5, who belongs to S.E.B.C. category, was allowed to be engaged for B.A., B.Ed., Arts Teacher (Sikshya Sahayak) meant for physically Handicapped and engagement order was also issued in her favour. 4.The grievance of the petitioner is that opposite party No.5 was allowed to produce her certificate in original for verification with the Medical Certificate, Character Certificate with her agreement in stamp paper in District Welfare Office, Jharsuguda on 22nd and 23rd December, 2011. After verification of all the documents of opposite party No.5 by opposite party No.2 she was selected in the B.A., B.Ed. Arts Teacher (Sikshya Sahayak) Post. Advertisement for thirteen posts of B.A. B.Ed., Arts Teacher reserving for S.T., S.C., O.B.C./S.E.B.C. General and Physically Handicapped was notified on 14.9.2011 fixing the last date of submission of application along with all enclosures on 30.9.2011. The petitioner submitted that neither the application form was submitted by opposite party No.5 before the opposite party No.2on or before the last date of submission of application nor her enclosures of all certificates of concern qualifications were submitted at the time of submission of application form. It is submitted that the Disability Certificate submitted by opposite party No.5 was issued by the Chief District Medical Officer on 19.11.2011 i.e. 1½ months after the receipt of the application. It is further contended that as per the terms and conditions of the advertisement defective and delayed applications received after the last date of receipt of applications were not to be taken into consideration. 5.As far as opposite party No.6 is concerned, it is submitted, he belongs to Scheduled Tribe untrained Handicapped Graduate category. He submitted his application along with all enclosures before opposite party No.2. At the time of submission of application he also submitted Employment Exchange Certificate as one of the enclosure which has been registered in +2 Arts only. It is further submitted that the requisite qualification, as per the advertisement, of an untrained candidate for B.A. B.Ed. Arts Teacher (Sikshya Sahayak) is +3 Arts. So opposite party No.6 should have registered his name in the Employment Exchange Office in the qualification of +3 Arts which would be an authenticated Employment Exchange Certificate. With such pleadings the petitioner prays that the final merit list be quashed and the engagement order issued in favour of opposite party No.5 should also be quashed. So opposite party No.6 should have registered his name in the Employment Exchange Office in the qualification of +3 Arts which would be an authenticated Employment Exchange Certificate. With such pleadings the petitioner prays that the final merit list be quashed and the engagement order issued in favour of opposite party No.5 should also be quashed. 6.Counter affidavit has been filed by opposite parties 2 and 3. It is admitted that pursuant to the letter issued by the Director, S.T. and S.C.-Cum-Additional Secretary to Government of Orissa, Bhubaneswar in S.T. and S.C. Development Department, the Collector issued advertisement bearing No.1138 dated 14.9. 2011 inviting applications from the eligible candidates. It is further stated that the petitioner being a physically handicapped candidate having “Kovid” in Sanskrit, which is equivalent to degree qualification, without C.T./B.Ed., had applied for the post of Sikshya Sahayak in the B.A.B.Ed. stream, as per Registration No.10 dated 21.9.2011 of the provisional list. In the Government order No.28674/SSD dated 29.8.2011 it is directed that the posts for category of B.A./B.Sc. with B.Ed. category are to be filled up by only the candidate having B.A./B.Sc. with B.Ed. qualification. In case of sufficient number of trained candidates of Physically Handicapped category are not available, then untrained candidate having appropriate academic qualification should be considered for engagement. 7.As per the list prepared and published in the Web Site on 25.11.2011 for production of original certificate on 30.11.2012 opposite party No.5 remained at Sl. No.26 and opposite party No.6 remained as at Sl. No.20. The draft selection list was signed on 12.12.2011 and published on 15.12.2011. It is further stated that as per the stay order passed by Physically Handicapped Commissioner, the post advertised for physically handicapped was kept vacant and the trained graduates were only selected according to their merit on percentage of marks. Accordingly, opposite party No.5, who was at Sl. No.8 of T.G. Arts under S.E.B.C. (Women), and opposite party No.6 at Sl. No.3 under physically handicapped category, were selected. Accordingly, the engagement order of opposite party No.5 was issued, but due to the order of stay by the Commissioner for Disable Person the engagement order could not be issued to the petitioner. However, it is stated that after vacation of stay order, steps were taken for issuance of engagement order. Accordingly the engagement order was sent through Registered Post. Accordingly, the engagement order of opposite party No.5 was issued, but due to the order of stay by the Commissioner for Disable Person the engagement order could not be issued to the petitioner. However, it is stated that after vacation of stay order, steps were taken for issuance of engagement order. Accordingly the engagement order was sent through Registered Post. 8.Opposite party No.5 was allowed for verification of the original certificate on 22.12.2011 for issue of engagement order in her favour. The selection was for T.G. Arts only, they were called for verification, but physically handicapped categories were not called for. The opposite parties 2 and 3 denied that the application was submitted on 22.11.2011 . At the time of verification of the original certificate on 22.12.2011, the candidates were asked to submit one set of copy of their all certificates duly attested on the same date. The petitioner in his R.T.I. application asked for supply of the certificate without mentioning the date and the copy of the certificate received on 22.11.2011 was supplied to him. 9.Regarding opposite party No.6, it is stated that the authenticated Employment Registration Certificate submitted at the time of application form along with all academic certificates from which his qualification was known as +3 Arts. Hence, there was no deviation in this case. Opposite parties 2 and 3 submitted that only because of the stay order passed by the Physically Handicapped Commissioner one post of unreserved category was kept vacant and no illegal selection was made in respect of opposite parties 5 and 6. Hence, it is stated that the writ petition is devoid of merit and the same should be dismissed. 10.Opposite party No.5 has filed her counter affidavit. It is admitted that she has made an application for the post of Sikshya Sahayak under the B.A.B.Ed. category. It is also admitted that the petitioner was an applicant meant for physically handicapped post. Her main contention is that the petitioner has tried to mislead the Court. Opposite party No.5 is a candidate having qualification of B.A.B.Ed. Arts and has got the engagement order for the post of S.E.B.C. (W) category. Opposite party No.5 assails that she has not got the engagement order for the post meant for physically handicapped person and she was not an applicant for that post. Opposite party No.5 is a candidate having qualification of B.A.B.Ed. Arts and has got the engagement order for the post of S.E.B.C. (W) category. Opposite party No.5 assails that she has not got the engagement order for the post meant for physically handicapped person and she was not an applicant for that post. Besides that the petitioner is an applicant meant for physically handicapped post and that post has not been filled up by the authorities and still it is lying vacant under Annexure-9 of the writ petition. Therefore, the statement of the petitioner that the physically handicapped post has been awarded to opposite party No.5 is false and unjustified. Hence she prayed that the writ petition should be dismissed being without merit. 11.On such facts of the case, the following questions of facts are to be determined by this Court - (i)Whether opposite party No.5 was engaged in the Physically Handicapped category or in S.E.B.C. (W) category ? (ii)Whether her engagement as Sikshya Sahayak is violative of the advertisement issued by opposite party No.2 ? And (iii)Whether opposite party No.6 has been engaged in-violation of the principles governing the engagement of Sikshya Sahayak ? 12.In order to effectively adjudicate the issues, it is necessary to look at the advertisement issued by the Collector, Jharsuguda, Annexure-1. This Annexure is not disputed by any of the parties. At page-14 (internal page-3 of the advertisement), the table for different number of posts reserved for different categories has been given. The relevant portion is reproduced below : Category of post ST M ST F SC M SC F OBC/SEBC General M General F PH Total B.A. B.Ed. 2 1 1 1 1 3 2 1 13 13.Now it is to be seen whether any engagement has been made in the Physically Handicapped category. It is not disputed that Annexure-9 is the draft select list according to which the engagement has been made. It shows that in the S.T. category three engagements have to be made, two for S.T.(M) and one for S.T.(F). It is borne out from the record that Sl. Nos.1 and 12 are the two S.T. Males, who have been engaged. Sl. No.8 is the single S.T.(F) category selected and engaged. So there is no illegality in engagement of S.T. category for Sikshya Sahayak. Similarly in S.C. category one Male and one Female are to be engaged. It is borne out from the record that Sl. Nos.1 and 12 are the two S.T. Males, who have been engaged. Sl. No.8 is the single S.T.(F) category selected and engaged. So there is no illegality in engagement of S.T. category for Sikshya Sahayak. Similarly in S.C. category one Male and one Female are to be engaged. The list reveals that Sl. No.4 is one S.C. (F) category person has been engaged and Sl. No.10 shows that another S.C. (F) has been engaged. So there is violation of the conditions specified in the advertisement so far as S.C. candidates are concerned. 14.Similarly, it is seen that as far as the category O.B.C. and S.E.B.C. are concerned, there are two posts one to be filled of by Male S.E.B.C. and another by Female S.E.B.C. category. However, in the final list it is seen that Sl. No.3 is S.E.B.C. (M) has been engaged, Sl. No.6 and Sl. No.9 (opposite party No.5) S.E.B.C. (Females) have been engaged. So it is clear that there is violation of the stipulations made in the advertisement. But not in the way the petitioner alleges about the same. It is seen that as far as general candidates are concerned there are three posts for General (Male) and two posts for General (Female). However, only three Males of General Category and one Female of General category have been engaged. 15.It is apparent from the records that only one Female of General category has been engaged and the second post has been filled by S.E.B.C. (W) category and accordingly, opposite party No.5 has been engaged in S.E.B.C. (W) category in B.A.B.Ed. stream. Thus, appointment of opposite party No.5 was in violation of the terms and conditions of the advertisement. 16.As far as the allegation of submission of documents and filing of the application form after the last date of submission is concerned, it has not been clearly established by the petitioner as it is apparent that the document submitted on 22.11.11 has been issued in the R.T.I. to the petitioner. It is also seen that opposite party No.5 has submitted a physically Handicapped Certificate, which was issued on 19.11.2011 after the last of filing of the forms for the B.A.B.Ed. category. It is also seen that opposite party No.5 has submitted a physically Handicapped Certificate, which was issued on 19.11.2011 after the last of filing of the forms for the B.A.B.Ed. category. However, since this Court has already come to the conclusion that opposite party No.5 has been selected as S.E.B.C. (W) candidate and not as a Physically Handicapped candidate, this aspect of the case looses relevance. 17.As far as engagement of opposite party No.6 is concerned, there is no illegality in selecting and engaging him as Sikshya Sahayak. Merely because the Employment Registration shows that he had passed +2 Arts and in the mean time he has passed Graduation in Arts will not make him ineligible. His engagement shall not be quashed on that ground alone. 18.Since the petitioner is failed to establish that opposite party No.5 was engaged as a physically handicapped person as one post was kept reserved for physically handicapped person and the list, Annexure-9, shows that it is kept vacant, it cannot be held that the petitioner was denied engagement only because of the illegal selection of opposite party No.5. Hence, order cannot be passed to engage the petitioner in place of opposite party No.5. 19.However, it is seen that after lifting of the stay order of the Physically Handicapped Commissioner, the authorities have issued engagement order in favour of the petitioner, but he has not joined in pursuance thereof. Therefore he has forfeited his right to claim engagement as Sikshya Sahayak in the physically handicapped category. 20.In the result, on the basis of the aforesaid discussions, this Court comes to the conclusion that the writ petition should be allowed in part. The engagement of opposite party No.5 is hereby quashed. The authorities are directed to take appropriate steps for filling of the said post by Un-reserved (Female) candidate of the merit list prepared on 12.12.2011. Keeping in view the peculiar facts of the case, no costs. Petition allowed in part.