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2018 DIGILAW 587 (ORI)

Sasmita Kar v. State of Orissa

2018-06-18

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - This is a writ petition seeking quashing of the order passed by the opposite party no.4 dated 01.10.2015 appearing at Annexure-7 and further directing the opposite parties to issue offer of engagement in favour of the petitioner as Sikhya Sahayak from the date persons placed below the petitioner in the merit list of 2006 was extended with such other benefits. 2. This is in the second round of litigation at the instance of the same petitioner involving non-engagement of the petitioner in the post of Sikhya Sahayak involving a recruitment of the year 2006. In the first round of litigation in W.P.(C) No.7520 of 2009, this Court while disposing of the writ petition in consideration of the case of the petitioner vide order dated 05.01.2015 directed as follows :- “Considering the nature of grievance, the writ petition is disposed of directing opp. party no.4- District Project Co-ordinator (SSA), Cuttack to consider and take a decision on petitioner’s representation at Annexure-4 after giving opportunity of being heard to the petitioner within a period of two weeks from the date of submission of certified copy of this order along with a copy of the writ petition under intimation to her.” 3. It is pursuant to the above direction of this Court, it appears that the District Project Office, Sarva Shiksha Abhiyan, Cuttack considered the case of the petitioner and on verification of materials made the following observations :- “A. Smt. Kar was engaged as Non Formal Education Facilitator vide order No.1429, dated 16th March 1996 of erstwhile Dist. Inspector of Schools, Salipur. B. Subsequently on abolition of the Non Formal Education Scheme, she was disengaged with effect from 31st March 2001 pursuant to order No.2318, dated 31st March 2001 of erstwhile Dist. Inspector of Schools, Salipur. As such incumbency of Smt. Kar (petitioner) under erstwhile Non Formal Education Scheme comes to 5 years 16 days. C. So inconsonance with the provisions laid during said recruitment year, Smt. Kar (petitioner) was entitled for 20 grace marks. However inadvertently she was awarded with 16 grace marks. Inspector of Schools, Salipur. As such incumbency of Smt. Kar (petitioner) under erstwhile Non Formal Education Scheme comes to 5 years 16 days. C. So inconsonance with the provisions laid during said recruitment year, Smt. Kar (petitioner) was entitled for 20 grace marks. However inadvertently she was awarded with 16 grace marks. As such her candidature could not came under zone of consideration.” Depending on the aforesaid observation, though the District Project Coordinator admitted non-selection of the petitioner as an inadvertent error, but on the premises that the petitioner never ventilated her grievance during the recruitment process at least till validity of the merit panel upto 29.10.2007 and further on the premises that there was no vacancy left to consider the candidature of the petitioner and thereby expressed his inability to accommodate the petitioner. Further taking aid of the direction of this Court vide order dated 06.01.2009 passed in W.P.(C) No.11926 of 2008, submitted that for the aforesaid direction of this Court not only the vacancies occurred at the relevant point of time have been filled through fresh recruitment process, but in the meantime two additional recruitment processes vide different advertisement has already been done, however, nothing prevented the petitioner to participate in the fresh recruitment process as taken place in the meanwhile. 4. It is at this stage, this Court likes to take note of the facts involving the case at hand; The petitioner is a trained Graduate and had applied for the post of Sikhya Sahayak pursuant to an advertisement issued by opposite party no.2 published in daily ‘Sambad’ on 13.10.2006 for engagement as Sikhya Sahayak. As per the advertisement for Cuttack Sadar and Municipal Limit, 59 posts of Sikhya Sahayak were notified. The consideration was made in terms of the Government Resolution dated 31.05.2006 lays down the procedure in the matter of selection of Sikhya Sahayak. As per the procedure laid down in the resolution dated 31.05.2006, 70% of posts were reserved for CT candidates and 30% posts were reserved for B.Ed candidates. Since the petitioner was a trained Graduate, she was to be considered against 30% quota. It was further stipulated therein that 33.3% of posts of each category are to be reserved for Women. Consequently, 18 posts in the 30% category fell to Women candidates and further considering the resolution etc., six posts fell to the Women category in the unreserved category. It was further stipulated therein that 33.3% of posts of each category are to be reserved for Women. Consequently, 18 posts in the 30% category fell to Women candidates and further considering the resolution etc., six posts fell to the Women category in the unreserved category. Referring to the clause contained in the advertisement at paragraph (ga), petitioner claimed that there is a clear mention that there is provision for benefit for the experienced candidate to the extent of their experience marks for a maximum of 5 years by 31.03.2001 and the candidates entitled to the benefit would be getting 4 additional marks for each year maximum to the extent of 20 marks in addition to the marks obtained in the interview process. Petitioner claimed that since she was engaged as Non-Formal Facilitator under Salipur Education district with effect from 16.03.1996 and continued till 31.03.2001 at Tirabindha Non-Formal Education Centre under Jignipur Gram Panchayat of Nischintakoili Block for which a certificate was also issued in favour of the petitioner by the District Inspector of Schools, she is entitled to full 20 marks following the above condition. Alleging non-selection of the petitioner, the petitioner has claimed that in spite of the petitioner having completed five years as Non-Formal Facilitator, instead of providing her 20 marks she has been awarded with 16 marks only and in the event proper marks could have been awarded to the petitioner, the petitioner would have secured 68.353 marks, i.e., 4 marks more than the marks awarded to her as 64.353%. The petitioner claimed that for the positioning of the petitioner on wrong calculation of marks, the petitioner has been prevented from getting into the job involved. Finding no way, she filed W.P.(C) No.7520 of 2009 which matter was disposed of by an order of this Court directing the opposite parties therein to consider the representation of the petitioner pending at their end. 5. Shri Rath, learned senior counsel appearing for the petitioner taking this Court to the Clause contained in Annexure-1 and further taking this Court to the period of working of the petitioner, submitted that there is calculational error by the authorities and in fact the petitioner would have been awarded with 20 marks for her completing 5 years as Non- Formal Facilitator. Taking this Court to the provisions involving Orissa Civil Service (Pension) Rules, 1992, particularly Rule- 47(3) providing pattern of calculation in case of fraction of the year and the definition of year following the provisions in Orissa General Clauses Act, 1937, Shri Rath, learned senior counsel appearing for the petitioner contended that even assuming that the opposite parties calculated the working of the petitioner to be 4 years 11 months 29 days, following the aforesaid provisions, the working experience so far the petitioner should have been calculated to be of 5 years and thus, she should have been awarded 20 marks and thus selected. Shri Rath, again taking this Court to a decision of the Hon’ble Apex Court in the case of Union of India (UOI) and others vrs. Surender Singh Parmar, reported in (2015) 3 SCC 404 , submitted that for the ratio decided therein, the decision has also a clear support to the case of the petitioner. 6. Shri D. Mohapatra, learned Standing counsel appearing for the School & Mass Education Department, however, referring to the direction of this Court in W.P.(C) No.7520 of 2009, W.P.(C) No.11926 of 2008 and further taking to the calculation aspect during the consideration of the case of the other candidates for the particular vacancy taking the plea that the petitioner in fact had not completed 5 years in total working as Non-Formal Facilitator and in fact her experience comes to be 4 years 11 months and 29 days, as such Shri Mohapatra, claimed that the action of the opposite parties in the award of 16 marks is justified. Shri Mohapatra, learned Standing counsel appearing for the School & Mass Education Department further taking this Court to the calculation aspect involving all the candidates, submitted that for securing of more marks by the other candidates than the petitioner and looking to the vacancy available at that point of time, the petitioner was kept away from consideration. Shri D. Mohapatra, learned Standing counsel appearing for the School & Mass Education Department further apart from producing the records to establish her working experience issue also relied upon two decisions of the Apex Court in the case of Miss Shainda Hasan vrs. State of Uttar Pradesh and others, reported in AIR 1990 S.C. 1381 and in the case of Bhanu Pratap vrs. State of Uttar Pradesh and others, reported in AIR 1990 S.C. 1381 and in the case of Bhanu Pratap vrs. State of Haryana and others, reported in (2011) 15 SCC 304, taking this Court to the discussions and the observations of the Apex Court, contended that for the support of the aforesaid two decisions in the case of official opposite parties, there is no room left for consideration of the case of the petitioner any further. Shri Mohapatra, also in the premises that no vacancy involving the year 2006 is available presently and further for there being two interviews already held in the meantime, submitted that the petitioner cannot be considered presently. 7. It is at this stage, this Court finds, disposal of the first round of litigation at the instance of the petitioner in W.P.(C) No.7520 of 2009 wherein this Court vide order dated 05.01.2015 while disposing of the said writ petition passed the following orders:- “Heard. Petitioner’s case is that as certified by the District Inspector of Schools, Salipur under Annexure-2, the petitioner was working as a N.F.E. Facilitator under Salipur Education District from 16.3.1996 to 31.3.2001 at Tirabindha N.F.E. Centre. Pursuant to advertisement dated 13.10.2006 at Annexure-1, she submitted application for engagement as Sikshya Sahayak. In the advertisement, specific provision has been made for awarding 20 grace marks to Non- Formal Facilitator and Non-Formal Supervisor having C.T./B.Ed degree. However, in the final merit list at Annexure-3, the petitioner was awarded 16 marks grace as a result of which she was placed at serial no.15 instead of serial no.6. Thus, she has been illegally deprived of engagement. In this connection, petitioner submitted representation at Annexure-4 to opp. party no.4-District Project Co-ordinator (SSA), Cuttack. However, no action has been taken on the petitioner’s representation. Considering the nature of grievance, the writ petition is disposed of directing opp. Thus, she has been illegally deprived of engagement. In this connection, petitioner submitted representation at Annexure-4 to opp. party no.4-District Project Co-ordinator (SSA), Cuttack. However, no action has been taken on the petitioner’s representation. Considering the nature of grievance, the writ petition is disposed of directing opp. party no.4- District Project Co-ordinator (SSA), Cuttack to consider and take a decision on petitioner’s representation at Annexure-4 after giving opportunity of being heard to the petitioner within a period of two weeks from the date of submission of certified copy of this order along with a copy of the writ petition under intimation to her.” There is another development involving W.P.(C) No.11926 of 2008 involving similar issue again involving same recruitment process, whereby this Court vide order dated 06.01.2009 while disposing the said writ petition passed the following orders:- “xxxxxxx not to fill up the vacancies of Shiksha Sahayaka from the selection list prepared in 2006. On the other hand, the authorities are directed to take expeditious steps for initiation of fresh recruitment process and candidates from the select list.xxxxx” 8. It is at this stage, this Court finds, following the aforesaid order, there were at least 3 fresh recruitment processes undertaken in the meantime. It is not known as to why the petitioner had not attended in either of the interviews or obtained at least some interim orders involving filling up vacancies involved therein. Be that as it may, this Court taking into account the direction of this Court involving W.P.(C) No.7520 of 2009 the Authorities in consideration of the case of the petitioner, thereafter have come to observe as follows :- “xxxx xxxxx xxxxxx Verified the materials / information on record, which reveals as follows :- A. Smt. Kar was engaged as Non Formal Education Facilitator vide order No.1429, dated 16th March 1996 of erstwhile Dist. Inspector of Schools, Salipur. B. Subsequently on abolition of the Non Formal Education Scheme, she was disengaged with effect from 31st March 2001 pursuant to order No.2318, dated 31st March 2001 of erstwhile Dist. Inspector of Schools, Salipur. As such incumbency of Smt. Kar (petitioner) under erstwhile Non Formal Education Scheme comes to 5 years 16 days. C. So inconsonance with the provisions laid during said recruitment year, Smt. Kar (petitioner) was entitled for 20 grace marks. However inadvertently she was awarded with 16 grace marks. Inspector of Schools, Salipur. As such incumbency of Smt. Kar (petitioner) under erstwhile Non Formal Education Scheme comes to 5 years 16 days. C. So inconsonance with the provisions laid during said recruitment year, Smt. Kar (petitioner) was entitled for 20 grace marks. However inadvertently she was awarded with 16 grace marks. As such her candidature could not came under zone of consideration. Being such the situation the inadvertent error could have been rectified had the petitioner brought this fact to the notice of the authority concerned. However it is found that the petitioner never ventilated her grievance during the recruitment process. Besides the petitioner had also not filed any objection during validity of the merit panel which remained valid upto 29th October 2007. In addition to this presently no vacancy is left to consider the candidature of the petitioner, thereby to provide her engagement as Shiksha Sahayaka. Apart from this Hon’ble High Court while disposing W.P.(C) No.11926 of 2008 had directed in order No.7, dated 06th January 2009 “xxxxxx not to fill up the vacancies of Shiksha Sahayaka from the selection list prepared in 2006. On the other hand, the authorities are directed to take expeditious steps for initiation of fresh recruitment process and candidates from the select list xxx”. It is not out of place to clarify here that after such disposal, 3 fresh recruitment process vide different advertisement has already been done. Hence in such circumstances it is of the considered view that no action can be taken in the matter at this level owing to extremely barred by the time. On such view, representation of the petitioner is disposed of.” 9. From the aforesaid, this Court finds, the Competent Authority in its complete domain considering the case of the petitioner even though observed that the incumbency of Smt. Kar under erstwhile Non Formal Education Programme comes to five years and sixteen days again in the next paragraph there is also a clear observation by the competent authority that Smt. Kar, the present petitioner was entitled for 20 grace marks, but however contended that for her not ventilating the grievance at appropriate time and further for department entering into three fresh recruitment processes, the Authority expressed its inability to accommodate the petitioner any further. Same opposite parties again through their additional affidavit took just a reverse plea that the petitioner had not completed five years clearly making out two contradictory stands by the same authorities. Be that as it may, this Court entering into the question as to whether the petitioner has in fact completed five years of service or not as Non Formal Educational Facilitator ? Looking to the service records of the petitioner produced by the Department, this Court finds, the petitioner had in fact 4 years, 11 months and 29 days to her credit as Non Formal Educational Facilitator. 10. Considering the rival contentions, and the different decisions cited at Bar, this Court finds here that the advertisement appearing at annexure-1 has the specific condition that one will be entitled to 4 grace marks for each year and maximum for 5 years, i.e., one will be entitled to maximum of 20 marks. The language in the advertisement is very much clear that one will be entitled for 4 marks for each year. Looking to the language in the advertisement, this Court observes, the only indication in this regard appears to be 4 grace marks will be awarded for each year and nothing beyond or behind. Now taking into account the decision of the Apex Court in the case of Bhanu Pratap vrs. State of Haryana and others, reported in (2011) 15 SCC 304, in paragraph-7 the Hon’ble Apex Court held as follows :- “17. There is no power provided in the statute nor was any such stipulation made in the advertisement and also in the statutory Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. There is no power provided in the statute nor was any such stipulation made in the advertisement and also in the statutory Rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. In our considered opinion, no such rounding off or relaxation was permissible. The Rules is permissible or possible by adding some words to the said statutory Rules for providing or giving the benefit of rounding off or relaxation.” Considering the attachment of condition in the advertisement, the ratio in the above Hon’ble Apex Court’s decision and further considering the claim of the learned Senior Counsel on rounding off of the year so as to complete benefit to the petitioner, this Court finds, there is no power provided in the statute nor was any such stipulation made in the advertisement and also in the statutory Rules permitting any scope for such rounding off or giving particular grace marks for any fraction of the year so as to bring up a candidate to the maximum requirement. In my considered view in the above circumstance, no such rounding off or relaxation was permissible. Condition in the advertisement being sacrosanct and having been applied in respect of all such candidates, there is no possibility of adding words to the said condition for providing or giving the extra benefit of rounding off or relaxation to the petitioner. 11. Similarly, taking into account the decision of the Apex Court in the case of Miss Shainda Hasan vrs. State of Uttar Pradesh and others, reported in AIR 1990 SC 1381 , a case involving appointment of a teacher and the claim for relaxing qualification of experience in favour of selected candidate, the Apex Court in appreciating the decision of Allahabad High Court, in paragraph-5 held as follows :- “5. The High Court has rightly held the relaxation granted by the Selection Committee to be arbitrary. In the absence of statutory rules providing power of relaxation, the advertisement must indicate that the Selection Committee / Appointing Authority has the power to relax the qualifications. Regarding “Working knowledge of Urdu” we do not agree with the High Court that the said qualification is unjust. The college being a Muslim minority institution prescribing the said qualification for the post of Principal, is in conformity with the object of establishing the institution.” 12. Regarding “Working knowledge of Urdu” we do not agree with the High Court that the said qualification is unjust. The college being a Muslim minority institution prescribing the said qualification for the post of Principal, is in conformity with the object of establishing the institution.” 12. From the whole analysis of the above aspect and the decisions of the Apex Court, this Court observes, once the Authority would be allowed entering into relaxation of the conditions involving the statute or the advertisement or the circulars since not arbitrary and further since has been applied to all cases considered in the same advertisement will be giving a handle with the authorities involved in the interview process which is not permissible in the eye of law. If an advertisement is published with specific conditions and anybody is affected by the stipulations or has any doubt in the conditions stated therein, it is appropriate for such candidate to approach the competent authorities at the threshold of the interview and not after exhaustion of the interview process and after allowing the interview process to continue with such conditions. Further, law is also settled that once a candidate has accepted the conditions and appeared in the interview is estopped to make an attempt for alteration or interpretation for any such conditions. This Court also observes, in the event the completed interviews are interfered in this atmosphere, it will be unsettling the prospect of many selected candidates in the meantime. Taking into account the divergent response of the contesting opposite parties in the matter of petitioner’s experience of 5 years or not, taking into consideration that in the meantime, for the development taken place in between particularly vacancies of the year 2006 having been filled up through separate selection process, this Court finds no vacancy of the said year is also available to be considered. There has been even two subsequent interviews leaving no scope to consider the case of the petitioner otherwise even. In the case of State of M.P. versus Pradeep Kumar as reported in (2000)7SCC372 the Hon’ble Apex Court held that law aids the vigilant and not those who sleep over their right. 13. There has been even two subsequent interviews leaving no scope to consider the case of the petitioner otherwise even. In the case of State of M.P. versus Pradeep Kumar as reported in (2000)7SCC372 the Hon’ble Apex Court held that law aids the vigilant and not those who sleep over their right. 13. Considering the aforesaid and taking into account clear condition in the advertisement, further taking into account that for the direction of this Court involving another writ petition, vacancies being filled-up through fresh advertisement process and for the support of the decisions referred to hereinabove to the case of the opposite parties, this Court finds, there is no scope for interfering in such matters. 14. The writ petition thus stand dismissed. No cost. Petition dismissed.