Pratima Sahoo vs State Of Orissa And Others

S.K. Mishra, J.

In this writ petition, the petitioner has prayed for issuance of writ in the nature of certiorari or any other writ/ writs orÂ

direction/ Â directions quashing the impugned order dated 23.05.2012 i.e. Annexure-6 issued by the opposite party no.3- District Project Coordinator,

SSA, Nayagarh and directing the opposite parties more particularly the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad,

Nayagarh, At/PO/ District- Nayagarh to engage her in the post of Sikhya Sahayak in any Primary School under Bhapur Block.

Facts are not in dispute.

The petitioner- Pratima Sahoo was initially engaged as Anganwadi Worker under the C.D.P.O., Bhapur Block, Bhapur and while she was continuing

in the said post, an advertisement was floated for filling up of the post of Sikhya Sahayak under Bhapur Block Circle for which the petitioner who had

satisfied all the eligibility criteria in terms of the said advertisement offered her candidature for the post of Sikhya Sahayak. Since the petitioner has

acquired B.Ed. training, the Selection Committee after due verification, selected the petitioner for the post of Sikhya Sahayak under Bhapur Block vide

letter dated 31.08.2007 and she was requested to submit necessary documents for verification, on 05.09.2007 in the office of the opposite party no.3-

District Project Coordinator, SSA, Nayagarh. On the said date, the documents of the petitioner were verified.

02.1. Thereafter, the petitioner on receiving the engagement order for the post of Sikhya Sahayak resigned from the post of Anganwadi Worker and

joined as Sikhya Sahayak on 17.10.2007. While she was continuing as such, all on a sudden, she got a letter on 20.02.2008 wherein the opposite party

no.3- District Project Coordinator, SSA, Nayagarh had issued a show cause notice to the petitioner as to why she would not be disengaged from the

post of Sikhya Sahayak since she secured less percentage of mark then other candidates.

02.2. On receipt of such letter, the petitioner challenged the same by filing W.P.(C) No.3548 of 2008 which was disposed of by this Court on

04.04.2008 directing the opposite party no.2-Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh to consider the case of the petitioner.

On 26.08.2008, the petitioner was disengaged from the post of Sikhya Sahayak with immediate effect on the ground that she has secured 94.66% of

mark in B.A. and B.Ed. percentage taken together whereas the lowest cut-off mark for selection in the category was 96.76%.

02.3. The petitioner, therefore, approached this Court by filing W.P.(C) No.1940 of 2009 which was disposed of at the threshold directing the opposite

party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh to consider the representation of the petitioner within a period of four

months. On 15.03.2012, the writ petition bearing W.P.(C) No.1478 of 2010 filed by the petitioner challenging the disengagement order dated

26.08.2008, under Annexure-4, was disposed of, on the basis of the instructions submitted by the District Project Coordinator of the School and Mass

Education Department that there were 2 vacancies in B.Ed. category, directing the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla

Parishad, Nayagarh to reconsider the matter, if any post is lying vacant, by taking a sympathetic view. On 23.03.2012, the petitioner filed a fresh

representation before the opposite party no.2 enclosing a copy of the order dated 15.03.2012 passed by this Court in W.P.(C) No.1478 of 2010.

However, the representation of the petitioner was rejected by the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad,

Nayagarh on 21.05.2012 vide enclosed disposal order under Annexure-6 to the writ petition. That order passed by the opposite party no.2- Collector-

cum-Chief Executive Officer, Zilla Parishad, Nayagarh on 21.05.2012 was intimated to the petitioner vide letter dated 23.05.2012 under Annexure-6

issued by the opposite party no.3-District Project Coordinator, SSA, Nayagarh. In the order dated 21.05.2012 the exact reasons given by the opposite

party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh in rejecting the representation of the petitionerÂ

can be well perceived from the plain languages used by him.

“In order to comply the Hon’ble High Court’s order in W.P.(C) No.1940/2009, the petitioner Smt. Sahoo was heard personally on 8.4.2009 by the then

Collector. The Collector observed that it is not a matter only between the Appointing Authority and the Appointee concerned. The aggrieved one can be all those

who had similar or better qualification than the appointee. It will be improper to appoint a person with inferior or lower marks ignoring better candidates. Giving

reengagement to such candidates will amount to perpetuation of injustice.â€​ (underline supplied)

Terming the reasoning given by the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh to be inappropriate and

erroneous, learned counsel for the petitioner submitted that while considering the case between the Appointing Authority and the Appointee

concerned, the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh should not have taken into consideration the

persons who may have higher marks than the petitioner but has accepted the fait accompli and have not taken any step for redressal of their

grievances, if they have any. 03.1. The other distinguishing feature in this case is that the cases of some persons were considered, though they have

not come forward to knock the doors of the Court or even of the authorities. But, when the petitioner was found eligible; she was given letter of

appointment; she resigned from her service as an Anganwadi Worker and then joined the post of Sikhya Sahayak and continued for some time,

thereafter, this matter arose.

Learned counsel for the petitioner argued that for no fault on the part of the petitioner, she has been left to suffer in this case. It is not the case of

the Appointing Authority that the petitioner had concealed the marks she has secured or anyway made any misrepresentation in order to secure the

post for which she had applied for. If there was any mistake in calculation of the percentage of marks and the inter se ranking between the candidates

then it is the fault of the Appointing Authority and his/ her staffs. In such a situation, where the petitioner has left a gainful employment of Anganwadi

Worker and joined the post of Sikhya Sahayak then the State of Orissa and the District Administration shall be the estopped from raising the plea of

mistake and hence, the order of disengagement and rejection of representation of the petitioner have to be set aside.

The specific plea taken by the opposite party no.3- District Project Coordinator, SSA, Nayagarh, District- Nayagarh was that the petitioner had

applied for the post of Sikhya Sahayak pursuant to the advertisement made in the year 2006 and the petitioner had applied for the same post for

Bhapur Block under B.Ed. category vacancy. The opposite party no.3- District Project Coordinator, SSA, Nayagarh, District- Nayagarh admitted that

the name of the petitioner was wrongly inserted in the select list in B.Ed. category as the mark of B.Ed. examination was calculated wrongly as 467

out of 900 which was actually 467 out of 950. It was, therefore, submitted that the total percentage in B.A. and B.Ed. taken together was wrongly

calculated as 97.39% instead of 94.66%. Without detecting the above mistake, the petitioner was given engagement order at that time for the post of

Sikhya Sahayak.

05.1. When the matter stood thus, pursuant to the direction of this Court in W.P.(C) No.13326 of 2007 filed by one Anusuya Pattajoshi against the

State of Orissa and others, the percentage of marks of the petitioner was re-calculated and error was detected against calculating marks of B.Ed.

examination. After detection of error, it was rectified and said Anusuya Pattajoshi was given engagement in place of the present petitioner and the

petitioner was disengaged immediately by the Collector-cum-Chairman, District Selection Committee due to less percentage than the selected

candidates. Alternatively, it was submitted by the learned counsel for the opposite parties that this writ petitioner was an applicant to the panel of

2006-07 which had already been expired and even after that panel, two other recruitments for Sikhya Sahayak had been completed during 2010-11

and 2011-12 and hence, the engagement of the petitioner who hold the position below to some other meritorious candidates and waiting list’s

applicants from 2006-07 panel is now not suitable in the eyes of law.

05.2. Mr. K. Rath, learned Additional Standing Counsel for the School and Mass Education Department submitted that any order passed by this

Hon’ble Court at this juncture directing engagement of the petitioner in the cadre of Sikhya Sahayak under Bhapur Block will unsettle the settled

position as prevailing at present.

In the case of Shyam Babu Verma and Others â€"vrs.- Union of India and Others: reported in (1994) 2 SCC 52,1 the Hon’ble Supreme Court

has held that in case higher pay scale erroneously was given to the petitioners since 1973 and the same was reduced in 1984, the petitioners received

the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. Similar view has been

taken by the Hon’ble Supreme Court in the case of Sahib Ram â€" vrs.- State of Haryana and Others: reported in 1995 Supp.(1) SCC 18.

06.1. In the case of Sanatan Gauda â€"vrs.- Berhampur University and Others: reported in (1990) 3 SCC 2,3 the Hon’ble Supreme Court

expanding the scope of promissory estoppels held that if a student is admitted, allowed to appear in examination and later

admitted to the final year course but at the stage of declaration of his results of pre-Law and Inter-Law examinations, objections to his ineligibility to

be admitted to the Law course raised by University on the basis of its own interpretation of the relevant regulations is to be countenance, as the

University is estopped from refusing to declare the results of appellant’s examination or from preventing him from pursing his final year course

because the appellant has made no false statement and suppressed any evidence before the authority and the student cannot be punished by the

University for negligence of the Principal or the University Authority.

06.2. In the case of Minati Kar and Others â€"vrs.- Rashtriya Sanskrit Sansthan and Another: reported in 1993 (II) OLR 342, a Division Bench of this

Court held that “xx xx xx Admittedly, the petitioners did not have 45 % of marks as required under Clause 1(a) of the prospectus. The prospectus

clearly stipulated that form should be filled in only if the candidate fulfils the eligibility requirements. It is no doubt true that by permitting the petitioners

to appear at the entrance test and, thereafter, by admitting them to the course and they having pursued their courses for one year, they have already

wasted more than two years and it is because of the fact that the opposite parties by their conduct entertained their application forms and permitted

them to appear at the test and, thereafter, on the basis of the result of the test permitted them to take admission and undergo studies for one yearâ€.

Distinguishing the ratio decided by this Court, in the case of Suresh Chandra Choudhury -vrs.- the Berhampur University and others: reported in AIR

1987 Orissa 38, the Division Bench of this Court held that the plea of estoppels will not apply as the petitioner was aware of the true state of things. In

the said case, this Court has not applied the principles of promissory estoppels.

Applying the aforesaid principles to the present case, we noticed the following silent features that are not disputed by anybody:

(i) The petitioner was holding the post of Anganwadi Worker and was discharging her duties;

(ii) The petitioner had applied pursuant to the advertisement for appointment as Sikhya Sahayak;

(iii) As per the advertisement, the petitioner was eligible to apply for the post of Sikhya Sahayak;

(iv) It is not disputed by anybody that the petitioner had made any false representation or anyway inflated the marks she has obtained;

(v) There was a mistake on the part of the Appointing Authority while calculating the petitioner’s B.A. andÂ

B.Ed. combined percentage;

(vi) The petitioner was appointed pursuant to a letter of appointment issued in her favour; and

(vii) The petitioner resigned from the post of Anganwadi Worker and she joined the post of Sikhya Sahayak.

It is not disputed by anybody that the State of Orissa and consequently the District administration headed by the District Collector-cum-Magistrate

are the State and, therefore, they should act as a model employer. They should not in any manner put any employee or any servant under them to any

kind of prejudicial and disadvantage position for the fault of the employees of the Government. In this case, the petitioner has not misrepresented about

her marks. The marks of the petitioner were miscalculated by the authorities-in-charge of the selection procedure. As a result of the miscalculation,

the petitioner was held to be eligible to be appointed as Sikhya Sahayak. The appointment letter i.e. Annexure-1 was issued in favour of the petitioner

for engagement as Sikhya Sahayak.

Section 115 of the Indian Evidence Act, 1872 provides for the definition of estoppel which is as follows:

 “When one person has, by his declaration, act or  omission, intentionally caused or permitted another person  to believe a thing to be

true and to act upon such belief,  neither he nor his representative shall be allowed, in any  suit or proceeding between himself and such person or his

 representative, to deny the truth of that thing.

 Illustration

 A intentionally and falsely leads B to believe that  certain land belongs to A, and thereby induces B to buy and  pay for it.

 The land afterwards becomes the property of A, and  A seeks to set aside the sale on the ground that, at the time  of the sale, he had no title. He must not be

allowed to prove  his want of title.â€​

Thus, in this case, the district administration, being an integral part of the State of Orissa, by its declaration i.e. act of issuing order of appointment

intentionally caused the petitioner to believe that she is found to be eligible on comparison of the marks secured by all the candidates and she acted

upon such belief, thereby resigned from the post of Anganwadi Worker and joined the post of Sikhya Sahayak under Bhapur Block. In such situation,

neither the State of Orissa nor its representatives i.e. the district administration or the Director of the OPEPA, in any proceeding between it and the

petitioner deny the truth of that thing. Once the State Government has allowed the petitioner to believe that she has qualified in the selection process

and is being appointed as Sikhya Sahayak in pursuance of which she resigned from the post of Anganwadi Worker and worked for almost six to eight

months as Sikhya Sahayak, the district administration/ State Government cannot deny that she does not qualify for the post of Sikhya Sahayak.

Hence, it is directed that the petitioner should be absorbed as Sikhya Sahayak under Bhapur Block with immediate effect. This order be complied

with by the opposite parties within a period of two months hence.

Accordingly, this writ petition is disposed of.

There shall be no order as to costs.

As restrictions are continuing due to COVID-19 pandemic, learned counsel for the parties may utilize the soft copy of this order available in the High

Court’s official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587, dated

25.03.2020.