Arati Mohapatra vs Deputy Registrar State Administrative Tribunal and others

K.R. MOHAPATRA, J.

1.This writ petition is directed against the order dated 03.06.2014 (Annexure-7) passed by the State Administrative Tribunal, Cuttack Bench, Cuttack

(for short, ‘learned Tribunal’) in O.A. No.2699 (C) of 2006 thereby dismissing the Original Application.

Facts in nut shell relevant for proper adjudication of the case are that the petitioner herein was appointed as an Assistant Teacher under the then

District Inspector of Schools, Jagatsinghpur Education District (opposite party No.5) and was posted at Singiri U.P. School at Singiri in the district of

Jagatsinghpur. While continuing as such, she had to face termination vide order dated 30.11.2006 (Annexure-1). The order of termination under

Annexure-1 was passed pursuant to the direction of learned Tribunal dated 24.01.2001, 16.09.2004, 02.12.2004 in O.A. No.2792(C) of 1999, C.P.

No.382(C) of 2001 and similar other Original Applications and Contempt Petitions. The said order of termination was challenged before learned

Tribunal by the petitioner and similar other Assistant Teachers of Jagatsinghpur and Tirtol Education districts in different Original Applications. The

facts and law involved in all the Original Applications being similar, the same were taken up together and were dismissed vide common order dated

03.06.2014, which is under challenge in this writ petition.

The case of the petitioner before learned Tribunal was that he being selected by a duly constituted Selection Committee was appointed as an

Assistant Teacher in the year 1997 and joined as such in Singiri U.P. School. While continuing as such, some unsuccessful candidates approached

learned Tribunal in O.A. No.2792(C) of 1999 and a batch of similar Original Applications alleging foul play in the selection process. Learned Tribunal

heard those Original Applications analogously and disposed of the same vide order dated 24.01.2001 with a direction to prepare category wise select

list in accordance with the instruction prevalent then. Alleging non-compliance of the order passed in O.A. No. 2792(C) of 1999, C.P. No. 382(C) of

2001 was filed before learned Tribunal. The Contempt Proceeding was dropped vide order dated 02.12.2004 with an observation that the State

Government has to prepare fresh select list within a period of four months from the date of the order taking into consideration the defects pointed out

by the applicants in their respective Original Applications. Accordingly, a fresh select list was prepared on 15.12.2004 and appointment orders were

issued. Subsequently, the said orders were withdrawn on the ground that the appointments were not made in consonance with order dated 02.12.2004

passed in C.P. No.382(C) of 2001. Assailing such withdrawal of the appointment orders O.A. No.305 of 2005 was filed by one Smt. Sailasutta Dei.

The said O.A. was disposed of with a direction that the State Government (respondent No.1) therein should call for the verified list from the Director

of Elementary Education, approve the final select list after due scrutiny and to issue appointment orders accordingly. In the garb of implementation of

the said direction, termination orders were issued against the petitioner and similarly situated Assistant Teachers terminating their services. The

petitioner and other similarly placed Assistant Teachers were not made parties to the aforesaid Original Application. It has been contended that while

terminating their services, neither any proceeding as envisaged under Rule 15 of the O.C.S. (CC&A) Rules, 1962 (for short, ‘Rules, 1962’) was

initiated against the applicants nor any notice to show cause was issued, which was the minimum requirement to dispense with the services of a

Government servant as they are protected under Article 311 (2) of the Constitution of India. As such, the termination orders are per se illegal and

being violative of natural justice.

Case of the State-opposite parties before learned Tribunal was that pursuant to the order of learned Tribunal, the Director of Elementary Education,

vide letter No.5351 dated 03.05.2006 submitted the verified select list of Jagatsinghpur and Tirtol Education districts. Thereafter, the Government

constituted a Committee under the Chairmanship of Additional Secretary, School and Mass Education Department to scrutinize the same. After

scrutinisation of the verified select list submitted by the Director of School and Mass Education Department, the Committee took a decision vide letter

dated 17.11.2006 taking into consideration the claims involved in O.A. No.2792(C) of 1999 and batch of cases as well as O.A. No.305 of 2006. As

per order of the Committee dated 17.11.2006, the petitioner along with other similarly situated Assistant Teachers were to face termination from

service as their names did not find place in the final/verified select list. As such there was no illegality in terminating services of the petitioner. It was

further contended that while implementing the order of learned Tribunal passed in O.A. No.2792 (C) of 1999, the Committee could not verify and

assess the marks of the applicants in O.A. No.668(C) of 2007, O.A. No.669(C) of 2007 and O.A. No.670(C) of 2007 since their testimonials and

application forms etc. were seized by the Vigilance Department in connection with Vigilance P.S. Case No.18 dated 21.05.1998. Hence, it was

contended that no illegality was committed by authorities of the State in terminating the petitioner as well as other similarly situated Assistant

Teachers, which was done pursuant to the direction of the learned Tribunal. As such, they prayed for dismissal of the writ petition.

Learned Tribunal, accepting the contention of the State-respondent, dismissed the Original Applications holding that there is no illegality or

irregularity in the order dated 30.11.2006 in terminating the services of the petitioner and other similarly situated Assistant Teachers. The petitioner

had also filed Review Petition in MP No.729(C) of 2014 contending inter alia that there was no vigilance case pending against the petitioner. Hence,

learned Tribunal committed wrong in including her Original Application, i.e., O.A. No.2699(C) of 2006 in the list of cases against whom Vigilance

cases were pending. She had secured 114.80 marks in the selection test, but her name was not placed in the verified select list prepared in accordance

with the direction of learned Tribunal showing that she has secured only 109.88 marks. Learned Standing Counsel for the School and Mass Education

Department although admitted the allegation that the applicant had not committed fraud and no vigilance proceeding was pending against her, but

submitted that since the petitioner secured only 109. 88 marks in the selection test, she had to face termination. Learned Tribunal allowed the Review

Petition vide his order dated 21.10.2014 (Annexure-9) to the extent of deleting O.A. No.2699 (C) of 2006 from the last paragraph of the order dated

03.06.2014 (Annexure-7) as no vigilance case was pending against her. However, learned Tribunal refused to consider other contentions raised by the

petitioner on the ground that the same does not come within the scope of the review. Accordingly, the Review Petition was disposed of vide order

dated 21.10.2014 (Annexure-9). Assailing both the orders, this writ petition has been filed.

Mr. Swain, learned counsel for the petitioner reiterating the contentions raised in the Original Application as well as this Writ Petition contended that

no vigilance proceeding is pending against the petitioner and there is no allegation of fraud committed by her. The petitioner was also not made party in

the Original Application in which direction was made to prepare the select list afresh taking into consideration the instructions issued by the

Government at the relevant time. Her services could not have been dispensed with without following due procedure of law. Neither any proceeding

under Rule 15 of the Rules, 1962 was initiated against her nor any notice to show cause was issued contemplating termination of her services. As

such, the cryptic order of termination dispensing with the services of the petitioner is neither legal nor justified, as it does not stand to the scrutiny of

law. Learned Tribunal also committed error in misconstruing the facts. The grounds raised by her before the learned Tribunal were not considered.

Mr. Swain reiterating the grounds taken in the Review Petition filed before learned Tribunal submitted that in the selection test held in the year 1997,

the petitioner had secured 114.80 marks, but her marks has been reduced to 109.88 in the select list prepared pursuant to the earlier direction of

learned Tribunal in O.A. Such reduction of marks has no basis and persons securing less than 114.80 marks have been retained in service, whereas

the petitioner had to face termination. In support of her case, the petitioner has filed the proceedings of the Selection Committee dated 31.01.1997

(Annexure-4), wherein the name of the petitioner appears at serial No.301 (page-100 of the writ petition). Column No.4 of the said list disclosed that

the petitioner has secured 114.80 marks.

The District Inspector of Schools, Jagatsinghpur (opposite party No.3) filed an affidavit enclosing the select list of candidates under Jagatsinghpur

Education District prepared in the proceedings of meeting dated 27.08.2014 (Annexure-A/3), pursuant to the direction of learned Tribunal in OA

No.1390(C) of 2010 by one Sri Abhaya Kumar Das and CP No.82(C) of 2009 arising out of OA No.2015(C) of 2008 filed by one Sri Ramakrishna

Das. In the said list, the name of the petitioner does not appear. Hence, the State-Opposite Party took a stand that she could not have been retained in

service as she had secured only 109.88 marks in toto, which is far less than the cutoff mark, i.e., 135.65 for the UR category and 122.61 for the UR

(women category). As such, it was imperative to terminate the services of the petitioner.

The petitioner filed reply to the counter affidavit and additional affidavit filed by the opposite party No.3 stating inter alia that the marks secured by

the petitioner in the recruitment test she has secured 114.80 mark. However, in the revised select list prepared pursuant to the direction of the learned

Tribunal, the mark secured by the petitioner was arbitrarily reduced to 109.88, which is without any basis. Further, candidates securing less mark than

that of the petitioner were retained in service, whereas the service of the petitioner was dispensed with. One Aurobinda Senapati (UR) (serial

No.308) in the select list of 1997 had secured 114.10 marks in the selection test. However, he has been placed at serial No. 62 in the revised select list

and he has been awarded 106.02 marks. Similarly, one Smt. Sudhansubala Behera UR (women) who was at serial No.337 in the select list of 1997

was awarded 109.13 marks. She has been placed at serial No.163 in the revised select list having secured 103.10 marks. Both of them although

secured less mark than that of the petitioner, they were retained in service, whereas the petitioner was terminated. Further contention of the petitioner

was that the last candidate under UR (women) category was Sahada Khatun, who has secured 111.53 marks in the revised select list. As such, the

allegation that the cutoff marks for UR (women) category was 122.61 marks is not correct. Hence, the petitioner contended that her termination is an

outcome of arbitrary and whimsical action of the authorities. Hence, Mr. Swain, learned counsel for the petitioner, contended that the petitioner should

be reinstated in service forthwith with all service benefits.

We have heard learned counsel for the parties at length and perused the record meticulously. The petitioner has filed the merit list prepared

pursuant to the minutes dated 31.01.1997, in which her name appeared at serial No.301 and she was awarded 114.80 marks. The minutes of the

proceeding was obtained by the petitioner under the provisions of the RTI Act. Opposite party No.3 in its counter affidavit does not dispute the

correctness of the said select list dated 31.01.1997. However, it is contended by the opposite party No.3 that pursuant to the direction of the Tribunal,

a Committee was constituted to prepare the categorywise selection list. Due to non-availability of the original viva-voce register and career mark

register in respect of the recruitment of Primary School Assistant Teachers of Jagatsinghpur Education district with the opposite party No.3, the

Dealing Assistant of the concerned Inspector of Schools was suspended by the Director of Elementary Education, Odisha. In order to work out the

viva-voce marks, the Committee prepared a base record and taking into consideration the marks secured in H.S.E. and C.T., the petitioner was

awarded with 14.14 marks in the viva-voce. It is fairly conceded by learned Standing Counsel for the School and Mass Education Department that

there was no allegation with regard to awarding of marks in the vivo-voce test. Moreover, no material was also placed before us to come to a

conclusion that marks awarded in the vivo-voce test in the merit list prepared on 31.01.1997 was not proper. As such, there was no reason to reduce

the marks awarded in favour of the petitioner in the vivo-voce test from 19.34 to 14.14 out of 25 marks. Annexure-A/3 filed by the opposite party

No.3 along with its affidavit has no relevance for the purpose of this case, as the petitioner was terminated pursuant to the decision taken on

17.11.2006.

Be that as it may, it is contended by the petitioner both before learned Tribunal as well as before this Court that Sri Aurobinda Senapati (UR) and

Smt. Sudhansubala Behera UR (women) securing less marks both in the merit list dated 31.01.1997 as well as the revised select list, have been

retained in service, whereas the petitioner was terminated. All these aspects were not at all considered by the learned Tribunal. Although this fact was

brought to the notice of learned Tribunal at the time of adjudication of the Review Petition, learned Tribunal refused to answer on the ground that the

same was beyond the scope of review. These vital aspects were required to be considered and answered by learned Tribunal. But learned Tribunal

has not at all delved into these material aspects. The impugned order under Annexure-7 is otherwise cryptic and non-speaking. Further learned

Tribunal adhered to hyper technicalities in dealing with the Review Petition. In our opinion these aspects can be well looked into by the Commissioner-

cum-Secretary, School and Mass Education Department-opposite party No.2, with reference to the relevant records.

In that view of the matter, we are constrained to hold that both the impugned orders under Annexure-7 as well as Annexure-9 are not sustainable

in the eyes of law and accordingly the same are set aside. The Commissioner-cum-Secretary, Schools and Mass Education Department, Government

of Odisha (opposite party No.2) is directed to consider the case of the petitioner in the light of the discussion made above treating the petitioner to

have secured 114.80 marks in the selection test and communicate a reasoned order within a period of three months.

The Writ Petition is allowed to the extent stated above. No cost.Â