Dismissed

Chitta Ranjan Bhol v. State

Orissa HC3 Aug 2016WP(C)/4717/2006

Case brief

AI extract

What is this about?

The court dismissed a writ petition by employees whose prior engagement was quashed due to violation of Article 16. It held they could not claim continuation of service after participating in a fresh selection process they failed, applying estoppel principles to bar challenges to the new advertisement and merit list.

What did the court decide?

The prayer to continue in service is rejected; the challenge to the advertisement and merit list is dismissed; interim order is vacated.

This writ petition has been filed for quashing the Annexure-6 dated 27.02.2006. The brief fact of the case of the petitioners is that in pursuance to an advertisemen t published in daily news paper on 25.3.2003 inviting applications for engagement of Swechhase vi Sikhya Sahayak in various education districts of the State of Odisha, selection process has been concluded and respective candidates have been selected. When the selection process was g oing on, the Government has made a notification vide circular dated 26.9.2003 directing all th e Collectors to give further recruitment to another 15682 number of Swechhasevi Sikhya Sahayak s in the State from the said merit list, which has been prepared in pursuance to the selection process initiated vide advertisement dated 25.3.2003. The petitioners, who are one among them , have been selected and engaged vide appointment letter issued in this regard on 24.11.2003 a nd have started discharging their duties. Some of the aggrieved persons approached this Court assailing the circular dated 26.9.2003 on the ground that when the advertisement has been issu ed for filling up of certain number of vacancies, the remaining available vacancies should not have been filled up without publication of fresh advertisement. But the Government instead of inviting fresh advertisement has directed the respective authorities to fill up the remaining vacancies on the basis of merit list already prepared. This Court after taking into considera tion all these aspects of the matter, has passed order in W.P.(C) No. 11748 of 2003 disposed o f on 29.4.2004 quashing the Government decision dated 26.9.2003 with further direction to the competent authority to come up with fresh advertisement providing opportunity to such candidat es, who have been engaged and may be affected by virtue of the order passed by this Court in W .P.(C) No. 11748 of 2003. Although the petitioners were continuing by virtue of the appointmen t letter issued in their favour, but in view of the fresh advertisement published pursuant to the order passed by this Court, they have also filed fresh application, but they were not sele cted since their names have not come in the provisional merit list. Thereafter, the petitioner s have filed this writ petition challenging the provisional merit list as well as the advertis ement dated 18.9.2004.

The grievance of the petitioners in this case is that since they have been validly en gaged by the order of the competent authority and they are still continuing pursuant to the in terim order dated 19.9.2005 passed by this Court, they should not be disengaged for the reason that they have no fault, rather the authorities have committed illegalities and irregularitie s in coming out with fresh instruction dated 26.9.2003 and as such, the petitioners cannot be victimized due to the illegal action of the State authorities. Learned counsel for the petiti oners submits that even in the selection process irregularities and illegalities have been com mitted by the authorities and therefore, the entire selection process initiated by way of fres h advertisement is to be quashed.

This Court by order dated 9.9.2005 though issued notice to the opposite parties, no c ounter affidavit has been filed. Learned counsel representing the School and Mass Education De partment has submitted that the petitioners have been affected by virtue of the order passed b y this Court in W.P.(C) No. 11748 of 2003. However, pursuant to the order passed by this Court in the said writ petition, the petitioners had been allowed to participate in the fresh selec tion process, but they were declared unsuccessful and as such, they have no right to continue in service. He further submits that the notification on the basis of which the petitioners hav e been engaged, has been quashed by this Court in W.P.(C) No. 11748 of 2003 and therefore, the ir engagement is void ab initio.

So far the claim of the petitioners that they should be allowed to continue in servic e is concerned, it has been submitted by the learned counsel for the opposite party-State that the very engagement of the petitioners is illegal since their engagement having been held to be illegal by this Court, their continuance in service will amount to reviewing the order pass ed by this Court in W.P.(C) No. 11748 of 2003.

Heard the learned counsel for the parties and perused the documents available on reco rd. The fact, which is not in dispute is that advertisement was published on 25.3.2003 invitin g applications for filling up of the posts of Swechhasevi Sikhya Sahayaks in the respective Ed ucation Districts of the State of Odisha. Pursuant to such advertisement dated 25.3.2003, the petitioners did not submit their applications. However, selection process was initiated on the basis of the said advertisement and merit list was prepared. The advertisement contains engag ement of a specific number of candidates and accordingly, they have been issued with the engag ement order. In the meanwhile, the Government has come out with executive instruction on 26.9. 2003 instructing the subordinate authorities to fill up another 15682 number of Swechhasevi Si khya Sahayaks on the basis of the same merit list, which has been prepared in the light of th e advertisement dated 25.3.2003. The petitioners have been selected and engagement orders have been issued in their favour on 24.11.2003 and in pursuance to the same, they are discharging their duties. After coming out with the instruction dated 26.9.2003, some of the aggrieved per sons have preferred a writ petition bearing W.P.(C) No. 11748 of 2003 and this Court has been

pleased to pass order holding therein that the executive instruction dated 26.9.2003 is absolu tely illegal and in the teeth of Article 16 of the Constitution of India for the reason that t he provisions of Article 16 has not been followed and thereby the instruction dated 26.9.2003 has been quashed with a direction to disengage all the Swechhasevi Sikhya Sahayaks, who have b een engaged pursuant to the letter dated 26.9.2003. Further this Court directed the competent authority to go for fresh selection in order to provide a fair chance to the selected candidat es, who had been selected in the light of the letter dated 26.9.2003. In view of the said dire ction given by this Court in W.P.(C) No. 11748 of 2003, fresh advertisement had been published . The petitioners though had participated, but were not selected. The petitioners being aggrie ved with their non-selection have filed this writ petition challenging the advertisement dated 18.9.2004 and the provisional merit list on the ground that since the petitioners have been s elected and engaged as Swechhasevi Sikhya Sahayaks pursuant to the advertisement dated 25.3.2 003, they should not be penalized for the illegalities committed by the State authorities. Pur suant to the interim order passed by this Court on 19.9.2005, the petitioners are still contin uing in service. Thus, the short question, which is necessary to be answered in this case is a s to Whether the petitioners, who have been selected and engaged as Swechhasevi Sikhya Sahayak purs uant to the instruction dated 26.9.2003 and the same having been quashed by this Court, can th e petitioners have a right to continue in service?

The sole claim of the petitioners is that they have never been disengaged from servic e and as such, they should be allowed to continue in service, but the fact is that when this C ourt has passed order in W.P.(C) No. 11748 of 2003 quashing the letter dated 26.9.2003 holding therein that the selection made pursuant to the letter dated 26.9.2003 is in the teeth of Art icle 16 of the Constitution as because other similarly situated employees had not been allowed to participate in the selection process and from the same merit list candidates have been se lected. Since this Court has quashed the letter dated 26.9.2003, in consequence thereof, the e ngagement made to all the persons pursuant to such letter dated 26.9.2003 is also held to be v oid. In view thereof, the engagement of the petitioner is also held to be void by virtue of th e declaration given by this Court in W.P.(C) No. 11748 of 2003.

This Court has also directed by order dated 31.1.2005 in W.P.(C) No. 14947 of 2004 to disengage all the Swechhasevi Sikhya Sahayaks, whose engagement has been declared to be void by this Court in W.P.(C) No.11748 of 2003. In the light of the order passed by this Court in W .P.(C) No.11748 of 2003, the Joint Secretary to Government by communication dated 6.3.2006 has directed all the Collectors to take immediate steps for issue of disengagement order to the c andidates of respective districts. For ready reference, the contents of the communication date d 6.3.2006 is quoted hereinbelow: Government of Orissa School and Mass Education Department

I am directed to refer to this Dept. letter NO.13924, dtd. 13.08 2004 and to say that Go vernment after careful consideration have decided as follows. 1. As per this Dept letter NO.894,dtd 26.09.2003, 10682 nos. of SSS were engaged in the Sta te. However, they were affected by the order of Honble High court in WP(C)NO.11748/03 dtd 29.4 .2004.

2. In pursuance of the above High Court order, 10682 nos. of SSS (disputed) were asked to a ppear in the next recruitment during 2004-05, But 5392 nos. Of candidates could not be selecte d for the post of SSS subsequently, Honble High Court in their order dtd 23.12.2004 have allow ed them to continue until further order and accordingly in this Dept letter No.2973, dtd 24.12 .2004 was issued directing not to disengage those 5292 nos, of SSS. 3. However, these 5292 nos. of SSS are again affected by the recent decision of Honble High Court in W.P.(C) No.14947 of 2004 dated 31.1.2005 and therefore these 5292 nos. of SSS are re quired to be disengaged from engagement, forthwith.

In view of the aforesaid circumstance, you are directed to take immediate step s for issue of disengagement order to the candidates of your District out of 10,682 SSS who di d not qualify the recruitment held during 2004-05 under intimation to this Department, at the

With regard to the claim of the petitioners that so many irregularities is there and on this ground the petitioners have challenged the provisional merit list and the advertisemen t dated 18.9.2004, this Court is of the opinion that the petitioners will have no right to cha llenge the advertisement dated 18.9.2004 after being participated in the selection process pur suant to the said advertisement for the simple reason that after participating in the selectio n process, the candidate who has become unsuccessful would cease to challenge the said adverti sement.

Reference needs to be made in this regard to the judgment of the Apex Court in the ca se of K.H.Siraj v. High Court of Kerala, (2006) 6 SCC 395 wherein it has been held that the c andidates who participated in the interview with knowledge that for selection they had to secu re prescribed minimum marks on being unsuccessful in interview could not turn around and chall enge that the said provision of minimum marks was improper, said challenge is liable to be dis missed on the ground of estoppels.

Applying the said principle, the prayer made by the petitioners challenging the adver tisement dated 18.9.2004 is not sustainable and accordingly, the same is rejected. So far as assailing the provisional merit list is concerned, it has been stated that as per the provisions of Section 4(4), the same is not valid, but in my considered view, the s ame cannot be entertained because the provisions of Section 4(4) has not been followed and tha t apart, the same has also not been pleaded in the writ petition. In absence of specific state ment made in the writ petition, this Court cannot allow such prayer in exercise of its extra o rdinary writ jurisdiction under Article 226 of the Constitution.

Chitta Ranjan Bhol v. State

Case brief

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Chitta Ranjan Bhol v. State

Case brief

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