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2016 DIGILAW 318 (ORI)

Karunakar Moharana v. State of Odisha

2016-04-20

S.N.PRASAD

body2016
JUDGMENT : S.N. PRASAD, J. In this writ petition, the petitioner has prayed for issuance of direction for consideration of his candidature for engagement as Sikshya Sahayak as he is a CT Trained and OTET passed candidate. 2. The brief facts of the case are that one advertisement was published on 31.10.2014 inviting applications from respective candidates for consideration of their candidature for being engaged as Sikshya Sahayak. The Government has issued a corrigendum on 9.2.2016 (Annexure-1) for clarification of some of the conditions of the original advertisement and in pursuance to the corrigendum, the petitioner has made an application for consideration of his candidature for engagement as Sikshya Sahayak. 3. It is the case of the petitioner that he has passed CT and +2 Arts and also passed the Odisha Teachers Eligibility Test (OTET) in the year 2015 but his case has not been considered. Hence he was constrained to file a writ petition before this Court being W.P.(C) No.3375 of 2016 and vide order dated 26.2.2016, a Bench of this Court has been pleased to pass an order to treat the writ petition as representation and take a decision in accordance with law within a specific period. Accordingly, the authority has taken decision vide order passed on 11.3.2016 (Annexure-2) rejecting the claim of the petitioner on the ground that the petitioner has passed OTET examination in the year 2015 while the advertisement has been issued in the year 2014 and as such as per the resolution issued by the Government for consideration of candidature of one or the other candidate for engagement as Sikshya Sahayak has not been fulfilled. The further case of the petitioner is that he has made an application by virtue of the corrigendum dated 9.2.2016 and as on that date, he has already passed OTET. Hence, he is eligible to be considered, but this aspect of the matter has not been considered. 4. Learned counsel representing the opposite parties-State has vehemently opposed the prayer of the petitioner by submitting and by placing the resolution No.18668 dated 6.8.2013 issued by the School and Mass Education Department, Odisha containing conditions of eligibility and other procedure for engagement of Sikshya Sahayak, one of the condition contained in Clause-6 under the heading of ELIGIBILITY which speaks about the engagement of Sikshya Sahayak for Cagegory-1 and 2. For category-1, it is mandatory to pass Odisha Teacher Eligibility Test (OTET-Category-1). For category-1, it is mandatory to pass Odisha Teacher Eligibility Test (OTET-Category-1). 5. According to the learned counsel representing the opposite parties-State, the petitioner has not passed OTET as on the date of advertisement and as such, he cannot be said to be eligible for consideration due to lack of eligibility condition as provided in the resolution dated 6.8.2013. It is further contended that the corrigendum cannot said to be a fresh advertisement, rather a corrigendum always relates to the original document and admittedly the petitioner has obtained the OTET eligibility qualification in the year 2015 while according to the petitioner, the advertisement was issued on 31.10.2015 and for this, it cannot be said to be eligible for consideration of his candidature for being engaged as Sikshya Sahayak due to lack of qualification of OTET (Category-1) on the date of advertisement. 6. It has been contended that in pursuance to the order passed by this Court in W.P.(C) No.3375 of 2015, the State Project Director, OPEPA has passed the order on 11.3.2016 discussing all these things and accordingly rejected the application of the petitioner since had not acquired the required qualification for the post as on 30.9.2014. 7. I have heard learned counsel for the parties and perused the document on record. 8. The admitted fact in this case is that the advertisement was published on 30.09.2014. The petitioner has not made an application in pursuance to the order dated 30.9.2014. The authorities have come out with a corrigendum on 9.2.2016 and in terms thereof, the petitioner has made an application for consideration of his candidature for engagement as Sikshya Sahayak. 9. It is also admitted by the petitioner that as on 30.9.2014, the petitioner has not passed the OTET (Cetegory-1), rather he has passed the same in the year 2015 and that is the reason he has made an application by virtue of the corrigendum issued on 9.2.2016. When the case of the petitioner has not been considered by the authorities, the petitioner has filed a writ petition being W.P.(C) No.3375 of 2015 and in pursuance to the order passed in the said writ petition, the State Project Director, OPEPA has passed the order on 11.3.2016 stating therein that as on 30.9.2014, the petitioner was not possessing the requisite qualification as provided under the resolution of the Government governing the field of selection process of Sikshya Sahayak. Hence, the representation has been rejected. 10. On perusal of the Resolution No.18668 dated 6.8.2013 which contains the eligibility condition at Clause-6. For ready reference, the relevant cause is reproduced as under: “6. ELIGIBILITY 6.1 Category-1 (a) Higher Secondary (+2 or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (CT); OR Higher Secondary (+2 or its equivalent with at least 50% marks and 2-year Diploma in Education (Special Education). OR Graduation and 2-year Diploma in Elementary Eduction/2-year Diploma in Special Education. AND (b) Pass in the Odisha Teacher Eligibility Test (OTET-Category-I). Xxx xxx xxx” 11. From perusal of the eligibility condition for Category-1, the petitioner, being an applicant for Category-1, has made an application for engagement as Sikshya Sahayak. It is evident that apart from the other qualifications, as contained in Clause-6.1(a) of the resolution, there is also a condition mandatorily to be possessed by a candidate i.e. pass in the Odisha Teacher Eligibility Test (OTET-Category-1) and admittedly the petitioner has passed the same in the year 2015. Admittedly, the advertisement has been issued fixing the last date of submission of application 30.9.2015 and as such, as on the date of issuance of the advertisement or even on the last date of submission of application i.e. 30.9.2014, the petitioner was not having the requisite qualification as provided in the resolution dated 6.8.2013. Hence, the petitioner cannot be said to be eligible for consideration of his candidature for engagement as Sikshya Sahayak. The petitioner although filed an application by virtue of the corrigendum and on the basis of that, he claims that his case ought to have been considered, but, this cannot be accepted for the reason that the corrigendum cannot be said to be a fresh advertisement, rather, the corrigendum always relates to the date of issuance of original documents. 12. Further, it is stated that a candidate is said to be eligible for he/she is having the requisites qualification as provided under the resolution dated 6.8.2013 as on the date of advertisement or as on the date of making an application as per the condition mentioned in the advertisement or in absence of any date mentioned the application has to be possessed by a candidate on the last day of making application as referred in the advertisement. 13. 13. In this respect, reference may be made to the decision rendered by the Hon’ble Supreme Court in the case of State of Gujarat and others -V- Arvindkumar T. Tiwari and another; (2012) 9 SCC 545 wherein the Hon’ble Apex Court placing reliance in the case of Preeti Srivastava -V- State of M.P., (1999)7 SCC 120 , has been pleased to held herein as under: “9. The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term qualification, may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfill the eligibility criteria.” In the judgment rendered in the case of Ashok Kumar Sonkar -V- Union of India and others; (2007) 4 SCC 54 , it has been held by the Hon’ble Supreme Court that possession of requisite educational qualification is mandatory. The cut-off date for the purpose of determining the eligibility of the candidates concerned must be fixed. But in the absence of any rule or any specific date having been fixed in the advertisement, the law, as held by the Hon’ble Apex Court would be the last date for filing the application. In the judgment of the Supreme Court rendered in the case of Rajasthan Public Service Commission -V- Kaila Kumar Paliwal and another; (2007) 10 SCC 260 , their Lordships, at paragrazph-21, have been pleased to held hereunder as: 21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. In the judgment of the Hob’ble Apex Court in the case of Rakesh Kumar Sharma -V- State (NCT of Delhi) and others; (2013) 11 SCC 58 , it has been held that a candidate is required to pass requisite qualification 14. In the judgment of the Hob’ble Apex Court in the case of Rakesh Kumar Sharma -V- State (NCT of Delhi) and others; (2013) 11 SCC 58 , it has been held that a candidate is required to pass requisite qualification 14. Thus, the well settled proposition of law is that a candidate, who requires to be engaged in a service, is required to possess the requisite qualification as per the reules/regulations/guidelines. 15. In this case, the advertisement was issued prescribing the last date of submission of application as 30.9.2014. But, the petitioner has not made any application, rather he has made application on the basis of corrigendum issued on 9.2.2016 and on the date of the advertisement or even on the last date of submission of application, the petitioner was not having the OTET(I) qualification which is mandatory condition for consideration of a candidature for being engaged as Sikshya Sahayak and such, in view of the settled proposition of law, as indicated in the cases of Ashok Kumar Sonkar and Rajasthan Public Service Commission (Supra), in absence of last date having been mentioned in the Advertisement or Resolution, the candidate is required to have requisite qualification on the last date of submission of application form. Here in this case, last date of submission of application form was 30.9.2014 and admittedly the petitioner was not having OTET-I as on 30.9.2014. Since as per his case, he has obtained OTET-I in the year 2015 and as such, the petitioner cannot be said to be eligible having no requisite qualification as on 30.9.2014. Here in this case, last date of submission of application form was 30.9.2014 and admittedly the petitioner was not having OTET-I as on 30.9.2014. Since as per his case, he has obtained OTET-I in the year 2015 and as such, the petitioner cannot be said to be eligible having no requisite qualification as on 30.9.2014. The petitioner wants a direction for consideration on account of corrigendum issued 9.2.2016, the day he obtained OTE-I, but his candidature cannot be considered on the said ground for the reason that the corrigendum has not been issued inviting fresh application as would be evident from corrigendum which has issued in terms of order passed by this Court in W.P.(C) No.6670 of 2015 in which direction has been passed to consider the application of over age candidate who could not be able to make application due to over age, The relevant part of corrigendum is being quoted: “ODISHA PRIMARY EDUCATION PROGRAMME AUTHORITY “SIKSHA SOUDHA” UNIT-V, BHUBANESWAR-751001 No.1297/Estt./16 Dated.09.02.2016 ENGAGEMENT OF SHIKSHA SAHAYAK CORRIGENDUM In pursuance of order of Hon’ble High Court passed in W.P.(C) No.6670/15, read with Letter No.2730/S & ME dated 04.02.2016 and in continuation to the advertisement published vide OPEPA letter No.7710 dated 11.09.2014, the last date for submission of on-line application for the post of Shikshya Sahayak (SS) is hereby extended for the candidates within the age group of 35-42 as on 30.09.2014 with relaxation of 5 years for SC/ST/SEBC/Women and 10 years of P.H. Candidates, those who were not able to apply due to age specification. The candidates, those who come under the age group of 35-42 with such relaxation can only be eligible to apply afresh who had not applied for the post of SS due to over age in response to the advertisement. This relaxation of age has been made for one time only and this cannot be considered as a precedent.” It is not the case of the petitioner here that he was over age during the time when the advertisement was issued, rather his specific case is that he was not having requisite qualification and as such, corrigendum dated 9.2.2016 be treated as fresh advertisement which cannot be allowed and rightly been rejected by the authority, but not challenged. 16. 16. The submission of the learned counsel for the petitioner that he has made an application in terms of the corrigendum dated 9.2.2016 which will be said to be a fresh advertisement which cannot be accepted for the reason that the corrigendum has been issued for those candidates who could not be able to make on-line application due to over age, but subsequently this Court, by virtue of an order passed in W.P.(C) No.6670/2015 has passed an order for consideration of candidature of those candidates whose applications have not been considered on the ground of having over age and as such in compliance of the order passed by this Court in W.P.(C) No.6670 of 2015, corrigendum has been issued. This aspect of the matter has been considered by the State Project Director while rejecting the claim of the petitioner vide order dated 11.3.2016, but not challenged in this writ petition, stating therein that the so-called advertisement dated 9.2.2016 cannot be said to be an advertisement. Rather the corrigendum has been issued in continuation of the advertisement published vide OPEPA letter No.7710 dated 11.9.2014 for engagement of Sikshya Sahayak 2014-15, wherein except the relaxation of age, the other eligibility criteria is same in the advertisement dated 9.2.2016. As per the certificate of OTET submitted by the petitioner, it is evident that the petitioner has passed the OTET during the year 2015 and as per the eligibility criteria of Sikshya Sahayak recruitment advertisement published for the year 2014-15, the candidate should have passed OTET as on 30.9.2014 and in view thereof, it has been stated by the State Project Director that the petitioner has not acquired the required qualification for the post as on 30.9.2014, which was the last date of submission of the application form. Thus merely on the ground of corrigendum, the candidature of other candidate who was not the applicant in pursuance to the first advertisement cannot be accepted and considered otherwise there will be no difference between corrigendum and the advertisement. Even otherwise also, corrigendum always relates to the original document which is issued for making modification/correction etc. 17. Thus merely on the ground of corrigendum, the candidature of other candidate who was not the applicant in pursuance to the first advertisement cannot be accepted and considered otherwise there will be no difference between corrigendum and the advertisement. Even otherwise also, corrigendum always relates to the original document which is issued for making modification/correction etc. 17. The petitioner cannot be given any relief also for the reason that the petitioner on earlier round of litigation by filing a writ petition being W.P.(C) No.3375 of 2016 has prayed for issuance of direction upon the opposite parties to accept the form for the post of Sikshya Sahayak in any preferential district under OBC/SEBC category and as such, the said writ petition was disposed of vide order dated 26.2.2016 directing the State Project Director, OPEPA, Bhubaneswar to treat the writ petition as representation and take a decision in accordance with law and in pursuance thereof, the authorities have passed an order on 11.3.2016 rejecting the claim of the petitioner, but the petitioner has not challenged the said order in this writ petition and again made the same prayer which he has made in W.P.(C) No.3375 of 2016 and as such, the writ petition is not maintainable for the same cause of action without challenging the decision taken by the authority on 11.3.2016. In this connection, the judgment of the Hon’ble Supreme Court rendered in the case of Sarguja Transport Service -V- State Transport Appellate Tribunal, Gwalior and others; AIR 1987 SC 88 needs to be referred. Further, in the said judgment, the ratio has been laid down that after withdrawal of the writ petition, second writ petition is not maintainable without taking leave from the Court, the principle has been laid down regarding maintainability of the writ petition as is being referred herein below: “9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open. However, here it is not the case of withdrawal but the principle will be applicable in the facts of the case that without challenging the decision of the authority which has been taken in pursuance to the order passed by this Court in its writ jurisdiction, no order can be challenged in successive writ petition otherwise it will amount to review of earlier order passed by this Court in W.P.(C) No.3375 of 2016. 18. 18. Keeping all these facts into consideration, the authority, in pursuance to the order passed by this Court in a writ petition filed by the petitioner under Articles 226 of the Constitution of India being W.P.(C) No.3375 of 2016, has rejected the claim of the petitioner. But without challenging the same order, the writ petitioner has filed a fresh writ petition raising the same cause of action and as such, this writ petitioner is not fit to be entertained on this ground also. 19. In the entirety of all these facts and circumstances, there is no merit in the writ petition which accordingly is dismissed.