Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 378 (ORI)

Somasnata Rath v. State of Odisha

2016-05-12

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. This writ petition is against the order dated 19.11.2015 passed in pursuance to the order passed by this Court in W.P. (C) No. 24995 of 2012 by the Collector & District Magistrate, Jagatsinghpur whereby and where under claim of the petitioner for engagement of Sikshya Sahayak has been rejected. 2. Brief facts of the case of the petitioner is that opposite party no.2 had published an advertisement for engagement of Sikshya Sahayak, published in daily newspaper dated 9.12.2011 pertaining to Jagatsinghpur and Tirtol Education District of Jagatsinghpur Revenue District. As per the advertisement there are 122 posts made available for Sikshya Sahayak having B.Sc./B.A. and B.Ed. qualification and 170 posts for +2 Science/Arts having C.T. qualification. Petitioner applied for engagement as Sikshya Sahayak pertaining to +2 Arts with C.T. qualification or having equal qualification as per the conditions stipulated in Clause-3 of the advertisement. The authorities have taken decision that the marks secured by a candidate in +2 courses or equivalent thereto and the marks secured in C.T. examination are to be taken into consideration as per the basis of merit for selecting candidates for engagement as Sikshya Sahayak. 3. The State Government as well as the Council of Higher Secondary Education, Odisha had treated Upasastri as equivalent to +2 qualification so also marks secured in the said examination is the marks secured by a candidate in +2 Examination. Clause 3 of the advertisement indicates that the candidate having +2 Arts and Science or the certificate accepted and notified by the competent authority as equivalent to such qualification and having C.T. pass certificate will be eligible for selection for the post of Sikshaya Sahayak. 4. The petitioner had secured 824 marks out of 1200 in Upasastri examination taking into account the 4th optional and secured 740 marks out of 1000 excluding the 4th optional marks and had secured 1st Division and accordingly the certificate and marks sheet has been issued by Shri Jagannath Sanskrit Viswa Vidyalaya along with marks secured by her in the C.T. examination conducted by the Board of Secondary Education,Orissa. The petitioner had been in receipt of letter bearing No.6503 dated 6.11.2012 on 12.11.2012, wherein it has been mentioned that the petitioner had done +2 Upasastri from Shree Jagannath Sanskrit Viswa Vidyalaya during the year 2008 and simultaneously she was continuing +3 Arts at SVM College, Jagatsinghpur, which may not be possible, therefore, she was asked to explain the reason of such lapses along with documentary evidence regarding the qualification acquired by her simultaneously for both the courses within seven days of receipt of the letter. 5. Petitioner has submitted his explanation before the opposite party no.3 stating therein that the petitioner had applied for the post of Sikshya Sahayak belong to +2 C.T. category but her prosecuting studies in +3 Arts had been questioned, though +3 qualification had no bearing for engagement of Sikshya Sahayak in the category of +2 C.T. and accordingly it has been stated that the petitioner had secured +2(Upasastri) from Shree Jagannath Sanskrit Viswa Vidyalaya and her continuance in +3 Arts has nothing to do as there was no restriction for prosecuting her higher study. It has further been stated that while the petitioner was prosecuting +2 course from S.V.M. College, Jagatsinghpur petitioner had prosecuted her Upasastri course from Shree Jagannath Sanskrit Viswa Vidyalaya and both the Universities are separate and independent one and the petitioner had separate and independent registration number for prosecuting her studies. Since the petitioner had applied for +2 C.T. post of Sikshya Sahayak and the petitioner has been selected on merit for such engagement, petitioner is entitled to be engaged as Sikshya Sahayak in the category of +2 C.T. 6. It has been submitted that in spite of the fact that the petitioners name was in the merit list but no engagement order was issued, she having no option had filed writ petition being W.P.(C) No.24995 of 2012 prayer therein to issue engagement order in her favour as Sikshya Sahayak since the position of the petitioner in the merit list is at serial no.3. This Court has passed order directing the Collector-cum-CEO, Zilla Parishad, Jagatsinghpur to pass order in accordance with law after examining all aspects of the matter, in terms thereof, the Collector has passed order on 19.11.2015 rejecting claim of the petitioner on the ground that the candidate cannot be allowed to continue two separate courses simultaneously. 7. This Court has passed order directing the Collector-cum-CEO, Zilla Parishad, Jagatsinghpur to pass order in accordance with law after examining all aspects of the matter, in terms thereof, the Collector has passed order on 19.11.2015 rejecting claim of the petitioner on the ground that the candidate cannot be allowed to continue two separate courses simultaneously. 7. Learned senior counsel representing the petitioner argued the case vehemently and has submitted that the Collector & District Magistrate has not appreciated the fact that minimum qualification for engagement as Sikshya Sahayak is +2 C.T. and even though petitioner was continuing with higher education i.e. +3 Arts from S.V.M. College, Jagatsinghpur, there is no embargo that she cannot got separate degree of Upasastri from different Universities/Institutions. It has further been submitted that the Collector has passed order without appreciating all aspects of the matter and without calling for report from Shree Jagannath Sanskrit Viswa Vidyalaya, Puri rather passed order totally relying upon the communication dated 14.11.2011 and as such the order passed by the Collector & District Magistrate, Jagatsinghpur cannot be said to in consonance with the order passed by this Court in W.P.(C) No.24995 of 2012. 8. While on the other hand, learned counsel representing the School and Mass Education Department has vehemently opposed contention of the learned senior counsel representing the petitioner by submitting that the petitioner has not disputed the fact that while pursing her study in +3 Arts from S.V.M. College, Jagatsinghpur she has also taken admission in +2 Upasastri in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri and as such the candidate cannot be allowed to pursue two different education in a time since same is not permissible as because a candidate is required to put required attendance in a course for becoming eligible to get final degree. Since the petitioner has not disputed this aspect of the matter when she was pursing +2 Upasastri from Shree Jagannath Sanskrit Viswa Vidayalaya, Puri she was also staying in +3 course from S.V.M. College, Jagatsinghpur and as such how she could be able to fulfill mandatory requirement to put attendance in both the institutions at a time, hence Upasastri Certificate has not been taken into consideration. It has been submitted that this Court had directed to conduct enquiry and the Collector has taken note of the communication dated 14.11.2011 issued by Shree Jaganathh Sanskrit Viswa Vidyalaya, Puri wherein it has been stated that after qualifying +2 Arts/Science/Commerce a candidate cannot take admission into Upasastri Course. A candidate after having failed in +2 can prosecute his duty in the Upasastri course as a regular candidate for two Academic sessions as per Upasastri Regulation of the University. 9. Thus, the Collector has taken note of the Regulation of Shree Jagannath Sanskrit Viswa Vidyalaya, Puri which stipulates a condition that a candidate can take admission in Upasastri course after having failed in +2 Arts/Science/Commerce and then only he can prosecute his study as a regular candidate for the academic session, but here in this case it is admitted fact, which has not been disputed by the petitioner that she has passed +2 Arts examination from SVM College, Jagatsinghpur in the year 2006 and thereafter has taken admission in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri for getting +2 Upasastri examination during the year 2008 and as such her admission in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri cannot be said to be in consonance with the Upasastri Regulation of the University and furthermore a candidate is required to attend regular classes for two academic session but the petitioner at that time by pursing +2 Upasastri in the year 2008 was also continuing with her study in +3 Arts at SVM College, Jagatsinghpur, hence she cannot be said to be a regular candidate for two academic session of Shree Jagannth Sanskrit Viswa Vidyalaya, Puri, as such certificate of Upasastri has rightly not been taken into consideration by the authority concerned and the Collector & District Magistrate, Jagatsighpur after taking into consideration these aspect of the matter has rejected the claim of the petitioner. Hence, there is no infirmity in the order impugned. 10. Heard learned counsel for the parties and perused the documents on record. 11. Fact which is not in dispute in this case is that:- (i) The petitioner has passed +2 Arts examination from SVM College, Jagatsinghpur during the year 2008. (ii) Petitioner has taken admission in +2 Upasastri and appeared in the examination for the year 2008 under Shree Jagannath Sanskrit Viswa Vidyalaya, Puri from where she has obtained +2 Upasastri Certificate. 11. Fact which is not in dispute in this case is that:- (i) The petitioner has passed +2 Arts examination from SVM College, Jagatsinghpur during the year 2008. (ii) Petitioner has taken admission in +2 Upasastri and appeared in the examination for the year 2008 under Shree Jagannath Sanskrit Viswa Vidyalaya, Puri from where she has obtained +2 Upasastri Certificate. (iii) While the petitioner was pursing her study for +2 Upasastri she was continuing study in +3 Arts at SVM College, Jagatsingpur and passed +3 examination in the year 2009. Thus, petitioner had continued two courses of +2 Upasastri and +3 Arts simultaneously in two different colleges. 12. As would be evident from the communication dated 14.11.2011 that Regulation of Upasastri which provides that after qualifying +2 Arts/Science/Commerce a candidate cannot take admission in to Upasastri Course. Here in this case, petitioner has passed +2 Arts Examination from SVM College from the year 2006 and as such she cannot take admission in +2 Upasastri course being qualified candidate in +2 Arts. Further provision of Upasastri Course is that a candidate after having failed in +2 can prosecute study in the Upasastri course as a regular candidate for two Academic session as per Upasastri Regulation of the University. 13. In this case, petitioner was not a failed candidate in +2 rather she has +2 pass candidate and as such she cannot take admission in Upasastri course and further at that time when the petitioner had taken admission in +2 Upasastri course in the college in question, she was pursuing +3 Arts course in SVM, College, Jagatsinghpur, hence she cannot be said to be a regular candidate in +2 Upasastri course as required as per the Upasastri Regulation of the University. 14. From the discussion made hereinabove, it is evident that +2 Upasastri Course is equivalent to +2 Arts. Upasastri would be treated to be a valid certificate if a candidate has passed in the said course only when failed in +2 Arts/Science/Commerce and taken Upasastri course as regular student for two academic session in question, then only +2 Upasastri Course would be said to be valid certificate. 15. Upasastri would be treated to be a valid certificate if a candidate has passed in the said course only when failed in +2 Arts/Science/Commerce and taken Upasastri course as regular student for two academic session in question, then only +2 Upasastri Course would be said to be valid certificate. 15. From the facts which has been narrated by the petitioner and discussion which has been made by the Collector & District Magistrate, Jagatsinghpur in the order, it is evident that the petitioner as a +2 Arts passed candidate but suppressing this aspect of the matter she has taken admission in Upasastri course and appeared in the examination in the year 2008 and got certificate of +2 Upasastri, that too at the same time she was pursuing her course in +3 Arts in another institution in SVM College, Jagatsinghpur while Upasastri course has been conducted by the petitioner in the district of Puri and both the districts i.e. Jagatsinghpur and Puri are of 80 to 90 kms. 16. Upasastri Regulation of the University stipulates that a candidate can take +2 Upasastri Course only if failed in +2 Arts/Science/Commerce but the petitioner is not a failed candidate in +2 rather she was a passed candidate and as such entry of the petitioner in Upasastri course cannot be said to be in consonance with the Upasastri Regulation. Further if the petitioner would have brought this fact into the notice of Shree Jagannath Sanskrit Viswa Vidyalaya, Puri regarding her passing of +2 Arts examination or pursusing +3 Arts from another College, certainly the petitioner would not have been admitted in the Shree Jagannath Sanskrit Viswa Vidyalaya, Puri which means that the petitioner has suppressed material facts for the purpose of getting admission in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri and got certificate. It is settled that if any certificate has been obtained by way of suppression of material facts which amounts to forgery and on the basis of the material suppression of fact if any certificate or order has been obtained, same has got sanctity in the eye of law. 17. It is settled that if any certificate has been obtained by way of suppression of material facts which amounts to forgery and on the basis of the material suppression of fact if any certificate or order has been obtained, same has got sanctity in the eye of law. 17. In this context, reference may be made to the provisions as contained in Section 17 of the Indian Contract Act, 1872 which defines definition of fraud which is being referred herein-below:- “Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) The active concealment of a fact by one having knowledge or belief of the fact; (3) A promise made without any intention of performing it; (4) Any other act fitted to deceive; (5) Any such act or omission as the law specially declares to be fraudulent.” Thus, it is evident that active concealment of a fact will be said to be fraud. Here, what has been gathered from the argument advanced on behalf of the parties and the order impugned that the petitioner has suppressed material facts regarding having passed +2 Arts examination for getting admission in +2 Upasastri in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri, hence it is active concealment of material fact on the part of the petitioner. 18. Material suppression of fact has been defined by the Hon’ble Apex Court in the case of S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and others, (2004) 7 SCC 166 ; Arunima Baruah vs. Union of India and others, (2007) 6 SCC 120 and K.D. Sharma vs. Steel Authority of India Limited and others, (2008) 12 SCC 481. Hon’ble Apex Court in the judgment have been pleased to lay down proposition of law that what is the meaning of material suppression of fact and if the facts suppressed is material one then only the Court of equity should not interfere in the matter. 19. Hon’ble Apex Court in the judgment have been pleased to lay down proposition of law that what is the meaning of material suppression of fact and if the facts suppressed is material one then only the Court of equity should not interfere in the matter. 19. If the facts of this case would be seen on the basis of the proposition of law laid down as indicated above, since the petitioner has suppressed facts regarding having passed +2 Arts from S.V.M. College, Jagatsinghpur for getting admission in +2 Upasastri course in Shree Jagannth Sanskrit Viswa Vidyalaya,Puri, hence suppression of that fact will be said to be material suppression of fact otherwise the petitioner would not have been admitted in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri in +2 Upasastri course she would not have shown pass +2 Arts/Science/Commerce certificate in view of the specific Upasastri Regulation, hence it is material suppression of fact. It is settled that fraud vitiates everything. In this regard, reference may be made to the judgment of the Hon’ble Supreme Court in the case of Devendra Kumar vs. State of Uttaranchal and others reported in (2013) 9 SCC 363 . 20. Learned senior counsel representing the petitioner has submitted that nobody has said that +2 Upasastri Certificate is forged one then how the petitioner can be deprived from her right of engagement but from the facts gathered and the discussions made hereinabove, it is evident that the petitioner has suppressed material fact from the authorities in getting in admission in Shree Jagannath Sanskrit Viswa Vidyalaya, Puri in +2 Upasastri by suppression of material facts otherwise petitioner would not have been admitted in the Shree Jagannath Sanskrit Viswa Vidyalaya, Puri. If this attitude of the petitioner would be taken in a positive way then everybody will get inducement for getting +2 Upasastri in case a candidate has secured lesser marks in +2 Arts/Science/ Commerce in order to get engagement and in that situation, selection process will be mockery. 21. The Collector & District Magistrate, Jagatsinghpur has discussed all these aspects of the matter and after going through the communication dated 14.11.2011 has passed well reasoned order and rejected the claim of the petitioner. 22. Hence, in view of the discussions made hereinabove and in view of the finding given by the Collector & District Magistrate, Jagatsinghpur, in my considered view, there is no infirmity in the impugned order. 22. Hence, in view of the discussions made hereinabove and in view of the finding given by the Collector & District Magistrate, Jagatsinghpur, in my considered view, there is no infirmity in the impugned order. Accordingly, the writ petition is dismissed being devoid of merit.