Abhaya Kumar Sethi vs State of Orissa and Others

S.N. Prasad, J.—1. The petitioner is before this Court against the order dated 27.02.2009 and for direction to opposite party No. 5 to expedite the enquiry and produce the enquiry report before this Court with a further direction to direct opposite party Nos. 3 and 4 to issue engagement order as Sikhya Sahayak in favour of the petitioner.

Brief facts of the case of the petitioner is that an advertisement was issued on 14.10.2006 requiring the intending candidates to apply for he post of Sikhya Sahayak in different districts to be appointed in Primary Schools. The petitioner who is having requisite qualification and also physically handicapped candidate had applied for the same. His application was duly received with the application form index No. 42.

In pursuance to the advertisement, selection of Sikhya Sahayak in respect of Bhadrak district could not have been concluded in time because of the interim stay of the selection in W.P.(C) No. 14981 of 2006 but however after decision in this case, the selection was taken up and category wise merit list was published, the petitioner having been selected as a SC candidate from the P.H. category, he was found place in the provisional merit list hence he was directed to appear before the Medical Board before issuance of final engagement order and accordingly the petitioner had appeared before the Medical Board and the Medical Board had found him suitable for engagement. The petitioner thereafter was directed to appear for verification of original certificate and to sign agreement for engagement.

But the petitioner even thereafter has not been engaged hence he has approached this Court vide W.P.(C) No. 13452 of 2008 and this Court vide order dated 19.08.2008 while disposing of the writ petition, this Court has given liberty to the petitioner to approach the Collector who in turn was directed to cause an enquiry by calling the records from the selecting authority and after providing opportunity of personal hearing to the parties and pass an order within stipulated period.

Accordingly, order was passed by the Collector on 27.02.2009 rejecting the claim which is impugned in this writ petition on the ground that the Collector has not taken into consideration the fact that the candidate like opposite party No. 6 who has not applied for the post and was below in the merit list has been engaged, but the petitioner has been denied from the benefit of engagement.

It is the case of the petitioner that opposite party No. 6 has only made application to be considered and engaged under the C.T. pool i.e., under 70% quota of vacancies but he has been engaged under B. Ed. pool. While on the other hand, the petitioner has made application under both C.T. pool and B. Ed. pool however in the C.T. pool he has not been declared to be successful but so far as it relates to the B. Ed. Pool, if opposite party No. 6 would not have been considered then the petitioner must have been selected but the authorities without considering the fact that opposite party No. 6 has not made application for B. Ed. Pool has considered him for engagement under the quota of 30% meant for B. Ed. Pool.

Further case of the petitioner is that opposite party No. 7 who has secured lesser marks than the petitioner but has been selected although learned counsel for the petitioner has fairly submitted that opposite party No. 7 is a female candidate for which category 33.1/3% reservation has been made.

Opposite party-School and Mass Education Department has appeared and filed counter affidavit through opposite party No. 3 and has submitted that the petitioner has applied for the post reserved for SC/P.H.(Ortho) category in CT pool and the petitioner was called upon by Medical Board on 10.04.2008 for verification of Medical Certificate, the same was verified but since he was not found to be up to the marks secured by the last selected candidate, so not selected.

It has been stated that the petitioner has made application both for CT pool and B. Ed. Pool, in the application submitted for CT pool all the certificates was enclosed by the petitioner but in the application form for B. Ed. Pool, P.H. certificate was not enclosed. Hence, he has not been considered and selected.

Opposite party No. 6 has appeared through his learned counsel who has submitted that opposite party No. 6 has made application for being considered under C.T. pool however he has been considered under the B. Ed. Pool and according to him there is no embargo that a candidate who will make application can only be considered in C.T. pool and not in B. Ed. Pool.

He further submits that there is no requirement to submit two application forms, it would be evident from clause-4.1 of the resolution dated 31.05.2006 which provides that in case of nonavailability of a candidate in one category, it will be filled up through candidates of other category and when the authorities have found that no candidate has been found eligible to be engaged under B. Ed. Category hence under the provision of clause-4.1 of the resolution, opposite party No. 6 has been engaged under B. Ed. Pool.

He submits that both the petitioner as well as opposite party No. 6 belongs to SC having Graduation and without B. Ed. or C.T. training so both of them are fulfilling the required qualification as provided under the resolution.

Although notice has been issued to opposite party No. 7 but none represented her.

Heard learned counsel for the parties and perused the documents on record.

From perusal of the impugned order, it is evident that on the prayer having been made by the petitioner in this writ petition directing opposite party No. 5 to conduct an enquiry and submit a report before this Court in pursuance to this, a report has been submitted by the Vigilance Department being Balasore Vigilance File No. 57 of 2008 as would be evident from the report dated 16.09.2011, it was placed before this Court by registry of this Court in the sealed cover and called for all the records which has been made available to this Court at the time of argument.

This order is being passed on the basis of the enquiry report and other material available on record.

Before appreciating the contention of the parties, it needs to refer the resolution dated 31.05.2006 which has been issued by the Department of School and Mass Education, Govt. of Odisha and in pursuance to the same, a notice has been published in the daily newspaper for filling up the vacancies of 180 posts of Sikshya Sahayaks including Bhadrak district.

As per the advertisement, Sikshya Sahayaks were to be engaged in Panchayati Raj Block unit wise by the Zilla Parishad by a Selection Committee to be headed by the Collector-cum-Chief Executive Officer, Zilla Parishad as Chairman and Circle Inspector of Schools and other functionaries as the members of the Committee.

The District Project Co-ordinator (SSA) has been empowered to act as convener of the Committee and shall prepare the draft selection list and place the same before Zilla Parishad with due approval of CEO-cum-Collector. The engagement has been directed to be made under two categories out of 70% of the vacant posts have been earmarked for each education district for candidates having Matriculate/+2 with C.T. qualification and 30% for candidates having B.A./B. Sc./B.Com with B. Ed. qualification. If candidates of any one of the category is not available, it will be filled up through candidates of other category. In case of CT/B. Ed. trained candidates are not available under SC and ST categories, untrained matriculate/+2 candidates of that category can only be engaged but against SC and ST quota, non SC/ST candidates shall not be engaged. The candidates belonging to SC/ST has been given relaxation so far as the educational qualification is concerned and the candidate under such category is not required to have CT/B. Ed training qualification.

In this case, the petitioner and opposite party No. 6 both belong to SC category and untrained. Thus, from the resolution dated 31.05.2006, it is evident that the post of Sikhya Sahayak is to be filled up under two categories one is CT pool and another B. Ed. pool having 70% and 30% vacancies respectively.

The petitioner has made application under CT category being a SC having Graduation with physically handicapped and also submitted a separate application for B. Ed. pool along with all certificates including Physically Handicapped certificate, as claimed. The petitioner''s candidature was considered for CT pool but under this pool he was not found to be successful since he had secured lesser marks than the last selected candidate. Case of the petitioner has also been considered for B. Ed. and according to the petitioner he has secured 22.58% under B. Ed pool but opposite party No. 6 has been selected, who has found to be obtained 23.56%.

According to the petitioner, opposite party No. 6 ought not to have been selected under B. Ed. pool because he has not submitted a separate application for B. Ed. pool for consideration of his candidature in both the categories.

For appreciating this argument of the petitioner, it needs to refer the provision of clause-4.1 of the resolution dated 31.05.2006, which is being reproduced herein below:--

"4.1. 70% of the vacant posts of each Education District will be for candidates having Matric/+2 with C.T. qualification and 30% for candidates having B.A./B.Sc./B.Com with B. Ed. qualification. If candidates of any one of category is not available, it will be filled up through candidates of other category."

According to this provision, it is evident that vacant posts have been earmarked to be filled up under CT pool and B. Ed. pool in 70% and 30% respectively but with the condition that if candidates of any one of the category is not available, it will be filled up through candidates of other category.

Thus, there is no dispute about the fact that both the categories are under two different categories and the option has been left open for the candidate to make one application or two applications for consideration under both categories which is the implied meaning of clause-4.1 of the resolution dated 31.05.2006.

It is also evident that if only one application is submitted by a candidate, there is no prohibition to the selection committee not to select a candidate who has made one application for consideration of engagement either in CT pool or B. Ed. pool as because there is specific stipulation that if candidates of any one of the category is not available, it will be filled up through candidates of other category.

There is no dispute about the fact that opposite party No. 6 has submitted one application for being considered in pursuance to the advertisement. It is also not in dispute that the petitioner has filed two applications; one for CT pool and another for B. Ed. pool. In CT pool, he has not found to be successful since he had secured lesser marks than the last selected candidate, but here that is not the subject matter of dispute.

But, however the petitioner is aggrieved with the non-selection under B. Ed. Pool and is before this Court by making a ground that opposite party No. 6 has been engaged even though he has not made application for B. Ed. pool and in support of his argument, he has referred so many documents i.e., annexure, application form, acknowledgement receipt etc. in order to demonstrate that two different applications have been filed by the petitioner for consideration in CT pool and B. Ed. pool.

There is no dispute about that the fact that options have been left open for the candidates for making applications which is being gathered from the material available on record because candidates have made applications for consideration in CT as well as in B. Ed. pool and that has been accepted and entertained by the selection committee which suggests that there is no prohibition in this regard.

The petitioner claims that he has submitted all certificates including PH certificate in both application i.e., under CT pool and B. Ed. pool. But the authorities have come out with the specific case that the PH certificate has not been enclosed with the application form which has been submitted by the petitioner for consideration under B. Ed pool, but the petitioner has strongly controverted this stand of the learned counsel for School and Mass Education Department and has submitted that if the P.H. certificate has not been enclosed, there was no occasion for the Selection Committee to make reference of PH category in the category wise provisional merit list as would be evident from Annexure-5 wherein the name of the petitioner is at Sl. No. 1477 and in the ''remarks'' column "PH has been referred which itself suggests that PH certificate was submitted".

In order to verify this aspect of the matter, reference of the report submitted by the Vigilance Department needs to be made and from its perusal it is evident that the petitioner has not attached ''PH'' certificate though he has written in the application form that he is physically handicapped having 65% disabled. After receipt of the application in B. Ed. pool name has been entered in application form, in receipt register his name has been mentioned at Sl. No. 42 in Bhadrak district. For ready reference, part of the report of the enquiry report is being reproduced:--

"The petitioner has not attached the PH certificate though he has written on the application form that the PH certificate obtained 65% disabilities. After receipt of the application, in B. Ed. pool his name has been entered in application form, receipt register and his name has been mentioned in Sl. No. 42 in Bhadrak Block."

Thus, there is fact finding given by the Vigilance Department regarding the fact that the petitioner has not submitted PH certificate along with application form, but however he has only referred regarding PH certificate without enclosing PH certificate, hence the contention of the opposite party-State in the counter affidavit that the case of the petitioner cannot be considered since he has not submitted PH certificate cannot be doubted and disputed.

Therefore, it is being held here that the application of the petitioner for B. Ed. pool was not submitted along with PH certificate.

So far as the contention of the petitioner that there is requirement to submit separate application for CT and B. Ed. pool but from the provision as contained in Clause-4.1, ground taken by the petitioner does not find support because even though CT and B. Ed pool are two different categories but a candidate of one category can be engaged in other category in case of non-availability of candidate in one or other category which suggests that even though a candidate has made application and he is eligible for B. Ed. pool or CT pool can be engaged in any of the category, if the candidate is not available in one or the other category.

However, there is also no restriction in not making two applications as has been discussed hereinabove.

The sole ground taken by the petitioner since opposite party No. 6 has not made application for B. Ed. pool hence he has no right to be considered and if it would not have been done then certainly the petitioner would have been selected but this ground is without any foundation in view of clause-4.1 wherein there is clear cut stipulation that the candidature of a candidate of one category can be considered if the candidate is not available in the category. Thus, there is no mandatory requirement to make separate application for the categories.

Admittedly, opposite party No. 6 has made application for CT pool and the authorities however found that no candidate is available against the available vacancy post, then they have exercised the power conferred under clause-4.1 regarding "if candidates of any one of the category is not available it will be filled up through candidates of other category."

As such in totality of entire facts, the petitioner has secured 22.58% marks and his percentage of marks did not come under 150% in merit list and also not submitted PH certificate, his name does not find place in the final merit list and as such against one post earmarked for PH category earmarked for B. Ed. Pool, the opposite party No. 6 was engaged since secured 23.56% marks by invoking Clause No. 4.1 of the Resolution dated 31.05.2006.

Hence, there is no illegality in engagement of opposite party No. 6 for the reasons stated above.

So far as contention of the petitioner that opposite party No. 7 has secured lesser marks than the petitioner but this has also no foundation because opposite party No. 7 admittedly is a female candidate for them the benefit of reservation has been made by which 33.1/3% reserved under ORV Act and as such the petitioner cannot claim similarity and cannot compare himself vis-�-vis candidature of opposite party No. 7 since both of them are on different footings hence the petitioner has got no case against opposite party No. 7.

In the light of reasons given hereinabove, in my considered view, the petitioner has got no case on merit.

Accordingly, the writ petition is dismissed being devoid of merits.