SAKTIPADA MOHAPATRA v. THE STATE OF ODISHA

remained pending for sufficient long time, the learned Single Judge dismissed the writ petition under order dated 24.06.2019 on the premise that during pendency of the writ petition the Scheme has been abolished and consequent thereto the writ petition has become infructuous by efflux of time.

3. The Division Bench of the High Court has also not bothered to look into the grievance of the appellant and dismissed the LPA by an order dated 14.10.2019 on the premise that the appellant has reached the age of 51 years when the appeal has come up for hearing and at this stage no mandamus can be issued to the Government to appoint the appellant.

4. It has always been said that delay denies justice, but if there was no delay on the part of the litigant in approaching the Court to ventilate his/her grievance, the litigant at least cannot be non-suited for the laches which are not attributable to him/her to deny justice for the aforesaid reasons.

5. The advertisement dated 14.10.2006 came to be published in local newspaper "The Samaj", whereby the DI of Schools, Jaleswar, P.O. Jaleswar, District Balasore, Orissa, inviting applications for appointment to the post of "Shikshya Sahayak" from such of the applicants who are holding the qualification of B.Ed and C.T. The appellant herein claiming himself to be eligible submitted application

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and the select list of the candidates who had participated in the selection process was to be prepared on the basis of academic qualifications and priority was to be given to such of the candidates who had a working experience to their credit and there shall be no interview. The procedure for holding selection has been indicated in paras 8, 10 and 11 of the advertisement, which are reproduced hereunder :

"8. The candidates who are working in the different planning (DPEP, EFA, NFE) of the government organisation in the prevailing Public Primary Education System of the State and having required educational qualifications the candidate will be given priority and their working experience will be taken into consideration and they will be appointed as Shikshya Sahayak/Sahayaka.

(a) Those who have worked with DPEP and having CT, B.Ed qualifications and worked as para teachers without any break, five marks per year will be given for their experience, maximum for three years (5 X 3 marks = 15 marks will be given)

(b) Similarly those who have worked with EFA and having CT, B.Ed qualifications and worked as para teachers without any break, five marks per year will be given for their experience, maximum for three years (5 X 3 = 15 marks will be given).

(c) Those who have worked with NFI/NFS and having CT, B.Ed qualifications and those who had worked till 31.03.2001 for their experience, they will be given 4 marks per year maximum for five years (4 X 5 marks = 20 marks will be given).

10. The selected candidates will be selected as per marks obtained in their Matriculation and C.T examination or Graduation and B.Ed examination. That there shall no interview conducted for this.

11. From all the posts 70% shall be filled by the candidates of matriculation/ +2/C.T./and rest 30% by the B.Ed candidates."

6. The merit list of the candidates who had participated in the process of selection came to be prepared by the respondents in terms of the procedure notified in the advertisement dated 14.10.2006, of which reference has been made. Undisputedly, the appellant secured 879 marks in total to his credit. At the same time, the other

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applicants to whom he impleaded as party respondents before the High Court (respondent nos.6 to 9) were lower in the order of merit even after giving them the benefit of grace marks in terms of the scheme notified by the respondents and this fact was admitted by the respondents in paras 6 and 8 of their counter affidavit filed before the High Court, which are reproduced hereinbelow:

"6. That, outset it is humbly and respectfully submitted that the petitioner being a matriculate and CT qualified had applied for the post of Shikshya Sahayak for Bhograi Block in the year 2006. He has secured 315 marks out of 700 marks in HSC examination and 564 marks out of 1050 marks in CT examination and thus secured 879 marks in total to his credit. The O.P. No-6, Swarnalata Jena, W/o- Sasanka Sekhar Jena has secured 266 marks out of 700 marks in HSC examination, 490 marks out of 1050 marks in CT examination and thus secures 756 marks in total to her credit. O.P. No. 7, Sumati Giri, S/o-Abhilash Chandra Giri has secured 249 marks out of 700 marks in HSC examination, 488 marks out of 1050 marks in CT examination and thus secured 737 marks in total to her credit. O.P. No-8, Subasini Pagal, W/O-Aswini Kumar Behera has secured 241 marks out of 700 marks in HSC examination, 493 marks out of 1050 marks in CT examination and thus secures 734 marks in total to her credit in total. O.P. No-9, Saraswati Dehuri has secured 327 marks out of 900 marks in HSC examination, 398 marks out of 1100 marks and thus secures 725 in total to her credit.

8. That, it is humbly and respectfully submitted that all the O.P. No.6 to 9 are NFE(Non-Formal Educator) retrenched women candidates. The percentage of marks covered by the O.P. No.6 to 9 in their respective HSC and CT examination is 43.2%, 42.11%, 41.94% and 36.25% respectively. During the course of computation of percentage adhering to the letter No.23004/SME, dtd. 22.11.2006 all the candidates like the O.P. No.6 to 9 have obtained 20% of marks towards their NFE experience in addition to their base percentage of marks. Thus, the resulting percentage of the O.P. No.6 to 9 is 63.2%, 62.11%, 61.94% and 56.25% respectively which is over and above than that of the petitioner. The petitioner is not at all eligible to get the benefit of extra 20% of marks as he did not satisfy the criteria mentioned in the advertisement."

7. It is also not disputed that of the four impleaded respondents before the High Court (respondent nos.6 to 9), three namely Swaranlata Jena, Sumati Giri and Subasini Pagal were appointed as

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Shikshya Sahayaks by an order dated 23.04.2007 and Saraswati Dehuri was appointed by an order dated 16.11.2007. It is not disputed that the appellant and the impleaded respondent nos.6 to 9 before the High Court, had participated under CT General category.

8. It reveals from the record that the appellant was completely unaware of the fact that the candidates who were lower in merit were considered for appointment and after this information was received by him under the Right to Information, a writ petition was preferred by him before the High Court under Article 226 of the Constitution seeking mandamus against the respondents to consider the case of the appellant for appointment in a category of CT General pursuant to advertisement dated 14.10.2006. The writ petition which remained pending for six years and later came to be dismissed by the learned Single Judge without adverting to the grievance of the appellant by order dated 24.06.2019 and the Division Bench of the High Court has also not bothered to consider the grievance of the appellant on merits and dismissed the LPA by order dated 14.10.2019 in a cavalier manner.

9. Learned counsel for the appellant submits that the criteria for selection was based on the marks secured in the academic qualification along with the grace marks based on the nature of service rendered by the applicant, which was the sole factor for determination

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of merit and it was specifically mentioned in the advertisement that there shall be no interview.

10. In the given facts and circumstances, once the appellant had secured higher marks, as has been reflected from the record, there was no reason forthcoming from the respondents why the appellant was not considered for appointment despite being placed higher in the order of merit vis-à-vis the applicants who had participated along with the appellant and were appointed in April/November, 2007.

11. The only justification which has been tendered by the respondents before the High Court and so also before this Court in the counter affidavit filed on behalf of respondent nos.1 to 5 is that the clarification was made by the Government of Orissa, Department of School and Mass Communication dated 22.11.2006 that while awarding grace marks to various categories of applicants, such of the applicants who had earlier served as Para Teaches of DPEP & EFA and NFI & NFE, etc. marks shall be added above the total percentage of marks computed as per procedure prescribed under the advertisement and when the marks secured by the candidates were converted into percentage, such of the respondents against whom the applicant made a claim (respondent nos.6 to 9 before the High Court), they secured higher percentage of marks and this was the reason because of which the appellant was not considered at the time of appointment.

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12. The justification which has been tendered by the respondents is wholly without substance for the reason that the criteria for determination of merit was based on academic qualification and experience as notified by the respondents under its advertisement dated 14.10.2006 of which a reference has been made and the clarification regarding computation of marks for Shikshya Sahayaks in 2006 by the Government further strengthens that the Resolution of the Government was that grant of grace marks as notified under the advertisement has to be strictly followed and mere converting marks secured by the applicants on the basis of academic records and experience into percentage would not in any manner be made prejudicial to the interest of the appellant which is the determining factor for assessment of merit and for consideration of appointment.

13. This was neither considered by the learned Single Judge nor by the Division Bench under the impugned judgments. One of the options this Court has either to remit the matter back to the High Court to revisit the material on record and examine the grievance of the appellant on merits, but looking at the manner in which the matter has been dealt with by the High Court, of which reference has been made, this Court considers it appropriate to look into the grievance of the appellant and pass appropriate orders to meet the legitimate grievance of the appellant.

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14. Once this fact has been established that those who are lower in order of merit (respondent nos.6 to 9 impleaded before the High Court), were appointed by an order dated 23.04.2007 and 16.11.2007 respectively and the only criteria for determination of merit was academic record and experience as was notified in the advertisement dated 14.10.2006, of which a detailed reference has been made, we find no reason to deny the legitimate right of the appellant from being considered for appointment to the post of Shikshya Sahayak to which he was otherwise eligible in terms of the advertisement.

15. The further defence of the respondents that the Scheme has later been abolished would be of no significance, particularly when the other applicants (respondent nos.6 to 9 impleaded before the High Court) who had participated along with the appellant in pursuance to the advertisement dated 14.10.2006, were appointed as Shikshya Sahayaks by orders dated 23.04.2007 and 16.11.2007 and were later on regularized as teachers by orders dated 08.11.2013 and 22.08.2014 respectively.

16. Consequently, the appeal succeeds and is allowed. The judgment and order dated 24.06.2019 of the learned Single Judge and dated 14.10.2019 of the Division Bench of the High Court are set aside and the respondents are directed to consider the case of the appellant and appoint him as Shikshya Sahayak on notional basis pursuant to

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advertisement dated 14.10.2006 within a period of one month from today. The appellant shall be entitled for all notional benefits, including pay scale and seniority, to which he is entitled under the law. For the period during which the appellant has not worked, he will not be entitled for any salary, but at the same time, he shall be treated to be in service from the date the persons lower in order of merit were appointed i.e. 23.04.2007 and the period of service notionally be considered as qualifying service for all practical purposes, including regularization w.e.f. 08.11.2013 as has been granted to the impleaded respondent nos.6 to 9 before the High Court with other consequential benefits. No costs.

17. Pending application(s), if any, stand disposed of.

……………………….J.

(AJAY RASTOGI)

……………………….J.

(ABHAY S. OKA)

NEW DELHI

FEBRUARY 02, 2022.

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ITEM NO.6 Court 13 (Video Conferencing) SECTION XI-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 3428/2021 (Arising out of impugned final judgment and order dated 14-10-2019 in WA No. 312/2019 passed by the High Court Of Orissa At Cuttack) SAKTIPADA MOHAPATRA Petitioner(s)

VERSUS

THE STATE OF ORISSA & ORS. Respondent(s) (IA 137883/2021 - PERMISSION TO FILE ADDL. DOCS./FACTS/ANNEXURES) Date : 02-02-2022 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE ABHAY S. OKA For Petitioner(s) Mr. Dipak Kumar Jena, AOR For Respondent(s) Mr. Subhasish Mohanty, AOR UPON hearing the counsel the Court made the following

O R D E R

Leave granted. The appeal is allowed in terms of signed non-reportable order.

Pending application(s), if any, stand disposed of.

(NEETA SAPRA) (BEENA JOLLY)

COURT MASTER (SH) COURT MASTER (NSH)

(Signed non-reportable order is placed on the file)

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