Ramesh Chandra Swain vs State Of Odisha And Others

Sashikanta Mishra, J.

Aggrieved by the rejection of his representation by the Collector-cum-CEO, Zilla Parishad, Sarva Shiksha Abhiyan (SSA), Ganjam by order dated 12.03.2020, the petitioner has approached this Court in the present writ application.

An  advertisement  was  published  on  08.12.2011 inviting applications from eligible candidates for engagement as Sikshya Sahayak under Sarva Shiksha Abhiyan (SSA), Ganjam Chhatrapur. The petitioner submitted his application. His name found place in the third phase Select List and he was directed to attend the District Project Office at Chhatrapur for verification of documents etc. At that time he was asked to produce the Odisha Teacher Eligibility Test (OTET) mark sheet, which he could not as he did not have such qualification. It is stated that the candidates in the first and second phase selection had been engaged without insisting upon OTET qualification and such a condition was raised only during the third phase. The petitioner therefore, approached this Court in W.P.(C) No. 12926 of 2015, which was disposed of by order dated 22.07.2015 directing the petitioner to submit a representation before the Collector, Ganjam furnishing all details including copy of the order passed by this Court in the case of Subrat Das and others vs. State of Odisha and others. 2012 (II) ILR-CUT-1050 ; 2012 SCC OnLine Ori 447. Further direction was issued to the Collector to take a decision in accordance with law and to grant the consequential relief to the petitioner, if his case was found to be covered by the Court in the case of Subrat Das (supra). The petitioner submitted a representation on 09.03.2017 along with copy of the order of this Court as well as the judgment in Subrat Das (supra). The representation of the petitioner not having been disposed of within the stipulated time, he again approached this Court in W.P.(C) No. 20361 of 2018 for a direction to consider his case for engagement as Sikahya Sahayak as per third phase selection. By order dated 21.12.2018, this Court disposed of the said writ petition directing the Collector to take a decision on the pending representation within three months. Since such order was also not complied, the petitioner filed a contempt petition being CONTC No. 1676 of 2019, which was disposed of by order dated 23.09.2019 to comply with the order passed in the writ application within three months. Since the petitioner was not informed anything as regards disposal of the representation, he submitted an application under Right to Information Act, 2005 before the Collector in this regard. In response to such application, it was informed that the representation had been disposed of by the Collector by order dated 12.03.2020 and same had also been communicated to him on 13.03.2020.

It is stated that the petitioner’s name finds place at serial No.6 in the third phase select list and his case is squarely covered by the ratio of Subrat Das (supra). In spite of the above, his representation was rejected on the ground that he had not passed OTET Examination and that all the posts had been filled up as per merit list, for which another recruitment process of 2013-14 was also over and further recruitment process of 2014-15 was in progress. It is stated that the judgment of this Court in Subrat Das was well within the knowledge of the opposite parties at the time of submission of his representation on 07.09.2015 and therefore, he should have been given engagement. It is further stated that only four numbers of OTET pass candidates out of 1221 were engaged. Being thus aggrieved, the petitioner has approached this Court seeking the following relief.

“The petitioner, therefore, most humbly prays that your Lordship would be graciously pleased to issue Rule Nisi calling upon the Opp.parties to show as to why the impugned order dtd.12.3.2020 under Annexure-8 series shall not be quashed and further be pleased to direct the Opp.Parties to give engagement to the petitioner as Sikshya Sahayak.

And issue any other order or orders as this Hon’ble Court deem fit and proper.

And for which act of kindness, the petitioners as in duty bound shall ever pray.”

Counter affidavit has been filed by the District Project Coordinator, Ganjam (opposite party No.3). It is stated that the petitioner does not possess the basic and prescribed requisite qualification for engagement as Sikshya Sahayak being non-OTET candidate having 44.395% of marks. This Court, while disposing of the writ application filed by the petitioner being W.P.(C) No. 12926 of 2015 had directed the Collector to consider the case of the petitioner and to grant him relief, if his case is covered by the decision in Subrat Das (supra). The decision passed in Subrat Das (supra) has been referred to in the counter. It is further stated that OTET examination was conducted and result was published on 04.02.2013. Due to non-joining of selected candidates and resignation tendered by some of the candidates, the third phase select list out of 150% approved merit list was circulated on 12.07.2013, for execution of agreement and issue of engagement orders. But on 16.07.2013 the Collector received letter dated 11.07.2013 from the Government in School and Mass Education Department with instructions to issue engagement order to the candidates out of 150% approved merit list, who have cleared OTET examination, the result of which was published on 04.01.2013. As such, all the posts have been filled up as per merit and the recruitment process of the year 2011-12 and 2013-14 was over and another recruitment process of 2014-15 was in progress. It is lastly stated that the order of the Collector being well discussed and a reasoned one, merits no interference.

Heard Mr. P.K. Mohanty, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State.

Mr. P.K. Mohanty would argue that once the selection process had begun, the authorities could not have changed the criteria for selection midway. Pursuant to the initiation of selection process, candidates were selected in two phases strictly as per the norms laid down in the advertisement. Suddenly however, during the third phase selection, an additional requirement of having TET qualification was introduced by the authority. This is not only illegal but also highly discriminatory inasmuch as such criteria was never applied to the candidates selected in the first and second phases. Mr. Mohanty would further argue that even otherwise there is nothing in the advertisement or in any law making it mandatory for an applicant of Sikshya Sahayak for acquiring prior TET qualification. According to him, TET qualification may be mandatory for regular teachers but not for Sikshya Sahayaks, who cannot be equated with regular teachers. In any case, this Court in Subrat Das (supra) directed the authorities to issue conditional engagement orders as per the select list granting them liberty to acquire OTET in future. There is therefore, no reason why the same benefit would not be granted to the petitioner.

Per contra, Mr. S.N. Pattnaik, learned AGA would submit that the norms of selection were not changed as alleged by the petitioner but only an additional criteria of having TET qualification was insisted upon as the same is in consonance with the guidelines of NCTE and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (in short, ‘2009 Act”). The petitioners in so far as Subrat Das (supra) are concerned, were granted liberty to acquire TET qualification by the end of January, 2013. It was open to the petitioner to acquire such training, but he failed to do so. In fact the petitioner does not have TET qualification even till date, which makes him ineligible for being engaged as Sikshya Sahayak. According to Mr. Pattnaik therefore, the impugned order passed by the Collector rejecting the petitioner’s representation does not warrant any interference.

It is not disputed at the bar that the advertisement dated 08.12.2011 inviting applications for engagement did not contain any such requirement of prior TET qualification as an eligibility condition. In the letter dated 05.12.2011 of the Commissioner-cum-Secretary to Government in SME Department containing instructions for engagement of Sikshya Sahayaks (Annexure-1), there is no such requirement of prior TET qualification for the candidates. It is also not disputed that pursuant to the selection process, several candidates were engaged in two phases. The Government issued a notification on 29.03.2012 instructing the Collectors not to proceed further in the matter of engagement of Sikshya Sahayaks on the ground that TET is mandatory for recruitment of teachers as stipulated by NCTE under the provisions of 2009 Act. A Coordinate Bench of this Court in the case of Subrat Das (Supra) had the occasion of dealing with an identical matter and noted that the advertisement was issued in the year 2011, i.e., much prior to the notification dated 29.03.2012, which had no retrospective effect. Further, additional criteria of acquiring TET before engagement was fixed after initiation of the selection process. This Court in Subrat Das held that once the selection process had started the authorities should not have changed the criteria of selection. Taking note of the decisions of the Supreme Court in the cases of Rajiv Kapoor v. State of Haryana (2000) 9 SCC 115, and Parmender Kumar v. State of Haryana (2012) 1 SCC 177, the Coordinate Bench felt it proper to quash the notification dated 29.03.2012 and the consequential notification dated 16.06.2012 issued by the Board of Secondary Education, Odisha. This Court therefore, finds that the basic notification dated 29.03.2012 fixing additional criteria is no longer available having been quashed for the reasons spelt out by the Coordinate Bench. This Court is in respectful agreement with the decision of the Coordinate Bench as above.

It has been argued at length by learned State Counsel that even otherwise, law mandates that the candidates must have TET qualification prior to their engagement as Sikshya Sahayaks. In this context Mr. Pattnaik has referred to the provision under Section 23(2) of the 2009 Act, which for immediate reference is quoted hereinbelow:

Qualifications for appointment and terms and conditions of service of teachers.-

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(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years:

Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (24 of 2017).

xx                                            xx                                            xx”

Mr. Pattnaik has further argued that since the petitioner admittedly lacks the TET qualification, his candidature was rightly rejected.

It appears that the Government in the Department of School & Mass Education vide Circular dated 05.12.2011, referring to the SME Department Resolution vide Memo No. 591/SME dated 10.01.2011 (wrongly mentioned as 10. 01.2001) approved the engagement of 17543 Sikshya Sahayaks during 2011-12. Pursuant to such Circular, the advertisement dated 08.12.2011 was published inviting applications for engagement of Sikshya Sahayak in Ganjam district. At the relevant time, the matter relating to engagement of Sikshya Sahayak was governed by the guidelines issued by the Government in its Resolution No. 587/SME dated 10.01.2011, a copy of which was forwarded to all Collectors-cum-Chief Executive Officers, Zilla Parishad vide Memo No. 591/SME dated 10.02.2011 referred to hereinbefore. Clause-4.2 of the said guidelines provided as follows:-

“4.2 Vacant posts as well as newly created posts in the elementary schools on account of opening of new Primary/Upper Primary Classes or due to Up-gradation of existing Primary Schools to Upper Primary Schools or opening of Class-VIII by way of up-gradation of existing Upper Primary Schools shall be filled up by the candidates having the qualification of +2 Science, Arts/Commerce (or its equivalent examination declared by appropriate authority) and C.T. Training or +2 Science, Arts/Commerce (or its equivalent examination declared by appropriate authority) 2 year Diploma in Education (Special Education) a course recognized by Rehabilitation Council of India (RCI) and B.A. B.Sc. (or its equivalent Examination declared by appropriate authority) and B.Ed. or B.A. B.Sc. (or its equivalent examination declared by appropriate authority) and one year B.Ed. (Special Education) a course recognized by Rehabilitation Council of India (RCI) as per the requirement under each category.

As per Section 23(2) of the said Act, read with rule 16(2) and (4) of the said Rules the State Government shall request the Central Government for relaxation of the prescribed minimum qualification as laid down by the academic authority for appointment of teachers. The candidates with lesser qualification will be considered for appointment only in the basis of qualification so relaxed by the central Government.

Untrained candidates selected as per the relaxed standard shall furnish an affidavit at the time of engagement to the effect that they shall acquire the required training qualification within a period of 5 years at their own cost.”

It is thus evident that the Central Government had the power to relax the prescribed minimum qualification as per Section-23 (2) of the 2009 Act and further that untrained candidates so selected can acquire the required training qualification within a period of five years at their own cost. So it was permissible for a candidate without training qualification to be engaged subject to the condition of his furnishing an affidavit of undertaking that he would acquire such qualification within five years. The stand taken by the authorities  that  the  petitioner’s  candidature  could  not  be considered for want of TET qualification despite his name finding place in the third phase select list is therefore unacceptable. In view of the Resolution dated 10.01.2011 read with Section 23(2) of the 2009 Act, the petitioner could also have been engaged and asked to acquire the required qualification within a stipulated period.

Significantly, the Coordinate Bench in Subrat Das (supra) also took note of the provision under Section 23(2) of the 2009 Act because several candidates had already been selected without TET qualification in the first and second phases. The petitioner’s candidature, as already stated, was rejected purportedly for non-completion of TET. As held earlier, in view of quashment of the notification dated 29.03.2012 as per the decision of the Coordinate Bench in Subrat Das (supra) rendered on 08.08.2012, the petitioner’s candidature could not have been rejected. The petitioner’s name found place at serial No.6 of the third phase selection list. If, according to the authorities, it was mandatory to have TET before engagement, there is no reason why the petitioner’s name found place in the third phase select list. The Collector, Ganjam while considering the representation of the petitioner has held in the impugned order that there is no post left vacant and recruitment process of 2011-12 and 2013-14 was over and another recruitment process of 2014-15 was in progress. It must be remembered that the petitioner was an applicant pursuant to the advertisement issued in the year 2011, while the decision of this Court in Subrat Das (supra) was rendered on 08.08.2012, whereby the notification dated 29.03.2012 was quashed. Under such circumstances, by relying upon a further circular dated 11.07.2013 (copy enclosed as Annexure-A/3 to the counter) the authorities have, in effect unsettled the position settled by the judgment of this Court in Subrat Das (supra). In other words, this Court having quashed the Notification dated 29.03.2012 fixing additional criteria for having TET qualification on the grounds referred to hereinbefore, the Government could not have issued similar criterion for engagement of Sikshya Sahayak in its Circular dated 11.07.2013. The Collector therefore, appears to have clearly fallen in error in interpreting the purport of the judgment of this Court in Subrat Das.

It is true that in Subrat Das (supra) reference was made to the relaxation clause under Section 23 and direction was given to issue engagement letters granting them liberty to clear the OTET by end of January, 2013 but the same, in the circumstances referred to in the proceeding paragraphs, cannot be interpreted to mean that a rigid time line had been stipulated by the Coordinate Bench. On the contrary, it is quite easy to discern that such liberty was granted in respect of the candidates whose names had found place in the first and second phase selection list. By such time the 3rd selection list had not been published. It was published only in July, 2013, i.e., much after passing of the judgment in Subrat Das. It is therefore, not open for the State to argue that the petitioner should have cleared the OTET by the end of January, 2013.

Thus, from a conspectus of the analysis of facts and law as made above, this Court is of the considered view that the authorities have committed material illegality in fixing additional criteria for selection and engagement of Sikshya Sahayaks after initiation of selection process. It is stated at the bar that the scheme of Sikshya Sahayak has been abolished in the meantime and hence, the petitioner can only be engaged in an equivalent post, which is said to be junior teacher. Such being the case, the Government can always relax the norms by permitting a junior teacher so engaged to acquire TET within a specified time. In the instant case, as has already been held, the petitioner was wrongly deprived of engagement despite being placed in the third phase selection list published in July, 2013. The authorities cannot therefore, contend that there being no posts left, he cannot be so engaged at present. It is reiterated that but for illegal deprivation of the petitioner he could have been engaged way back in 2013. The State being a model employer should consider that such undue deprivation of engagement of the petitioner militates against the right to livelihood ingrained under Article 21 of the Constitution. Therefore, the State with a view to recompense the petitioner for the valuable years lost by him in pursuing this job and in fighting multiple litigations before this Court to assert his rights, should treat it as a special case by engaging the petitioner in any equivalent post subject to the condition of his acquiring TET qualification within a reasonable time and if necessary, by relaxing the age criteria.

In the result, the writ petition is allowed. The impugned order under Annexure-8 is hereby quashed. The opposite party authorities, particularly, opposite party No.2 is directed to engage the petitioner against the available vacancies in any equivalent post subject to the condition of his acquiring TET qualification within a stipulated period. Necessary orders in this regard should be passed as early as possible, preferably within a period of four months.

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