Allowed¶¶92

Swagatika Mishra v. State of Odisha

Recruitment – TGT (Arts) under OSSC advertisement dated 23.11.2022

Orissa HC13 Sept 2024WP(C)/39436/2023

Download

Case brief

AI extract

What is this about?

Writ petition (W.P.(C) No.39436 of 2023, Orissa HC, decided 13.09.2024, B.P. Routray, J.) by a TGT (Arts) candidate tied at cut-off mark 102 challenging OSSC's career-assessment tie-break; Court holds Rule 14(iv) of OSSC Rules 1993 is overridden by Rule 6-A (2020 amendment) and the 2021 Rules discontinuing career assessment; seniority in age is the correct tie-break; petitioner (age rank 3 of 23) granted appointment in UR(W) category against post kept vacant by interim order; petition allowed.

What did the court decide?

Writ petition allowed; Opposite Parties directed to give appointment to the Petitioner in TGT (Arts) in UR(W) category in any suitable post within a period of one month from the date of receipt of certified copy of the order. ¶¶92

Swagatika Mishra Vs State of Odisha — Writ and Judicial Review | Orissa HC (2024)

What the court decided

AI extract

Outcome

¶¶92

Issue for consideration

Whether adoption of the career assessment process by OSSC for further selection between candidates tying at the same cut-off mark (102) is valid and in terms of the existing norms/rules. +1 more

¶¶41

Court's answer

Rule 14(iv) of the 1993 Rules cannot be read in isolation without Rule 6-A and without the overriding effect of the 2021 Rules; the provisions relating to assessment of academic career for tied candidates cannot be applied excluding all other provisions.

¶¶65

Ratio / Principle

Since Rule 6-A of the 1993 Rules was brought in by later amendment (2020) and the general rule was introduced by the G.A. Department in 2021, those provisions prevail over the prescription of Rule 14(iv) of the 1993 Rules in respect of career assessment; therefore the career assessment process adopted in the present case is not a valid procedure.

¶¶84

Key takeaways

No specific rule governs recruitment to the post of Trained Graduate Teachers (TGT) except the Odisha Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993, which prescribes a different procedure and which neither party claims applies; moreover, the advertisement itself prescribes no tie-break procedure for selection.ratio¶¶86
The process adopted by OSSC to exclude the Petitioner's name from the final select list is illegal, and the right procedure should be seniority in age as per the prevailing rules.ratio¶¶89

Detailed headnote1 paragraphs

Recruitment — TGT (Arts) under OSSC advertisement dated 23.11.2022 — Petitioner, an UR(W) candidate, secured 102 marks, the cut-off at which 23 candidates tied for 18 vacancies — OSSC broke the tie by academic career assessment under Rule 14(iv) of the Odisha Staff Selection Commission Rules, 1993, placing the Petitioner at SL No.19 and excluding her — Held: Rule 14(iv) cannot be read in isolation of Rule 6-A of the 1993 Rules (inserted 03.03.2020, barring career assessment for Group-B/Group-C posts) or of the overriding Odisha Civil Services (Discontinuance of Career Assessment) Rules, 2021; the later general law prevails over the earlier special law on inconsistency (principles from Ajoy Kumar Banerjee, R.S. Raghunath and State of U.P. v. Karunesh Kumar) — no specific rule governs TGT recruitment and the advertisement prescribes no tie-break, hence career assessment is invalid and seniority in age is the right criterion — Petitioner ranks SL No.3 by age among the tied 23; one post kept vacant per interim order dated 06.12.2023 and vacancy confirmed on 10.09.2024 — Writ petition allowed; appointment directed within one month.

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

W.P.(C) No.39436 of 2023

¶3

(Under Article 226 and 227 of the Constitution of India)

¶4

Smt. Swagatika Mishra …. Petitioner

¶5

-versus-

¶6

State of Odisha, represented through its Commissioner-cum-Secretary, School and Mass Education …. Department and Others Opposite Parties

¶7

Advocate(s) appeared in this case:-

¶8

For Petitioner : Mr. Sameer Kumar Das, Advocate For Opposite Parties : Mr. S.P. Panda, AGA for O.P.1 & 2 Mr. S.N. Pattnaik, counsel for O.P.3

¶9

CORAM: JUSTICE B.P. ROUTRAY

¶10

JUDGMENT 13^th September, 2024

¶11

B.P. Routray, J.

¶12

Heard Mr. S.K. Das, learned counsel for the Petitioner, Mr. S.P.

¶13

Panda, learned AGA for State – Opposite Parties 1 and 2 and Mr. S.N. Pattnaik, learned counsel for Opposite Party No.3.

¶14

The Petitioner is an applicant for the post of TGT (Arts)

¶15

pursuant to advertisement dated 23^rd November, 2022 under Annexure-

¶16

She has the requisite qualification and accordingly in the main

¶17

WP(C) No.39436 of 2023

¶18

Page 1 of 13

¶19

examination she secured 102 marks. The selection process went down upto 102 marks (cut off mark) in the main examination, which is the

¶20

mark secured by last selected candidate. It needs to be mentioned here that the posts were advertised by Odisha Staff Selection Commission (OSSC) as per the requisition of Government in School and Mass Education Department. OSSC accordingly prepared the final select list under Annexure-9. The Petitioner belongs to UR(W) category. However, despite securing the cut-off mark the Petitioner’s name did not find place in the final select list. Subsequently she came to know that there were 23 candidates in the cut-off mark 102, and due to securing same mark by so many candidates only 18 candidates were selected based on career assessment process.

¶21

The Petitioner challenges her non-selection to the post by adopting career assessment process in case of tie of marks between two and more candidates.

¶22

The State has not filed its counter. Opposite Party No.3 (OSSC) filed their counter reply by justifying their action of selecting candidates in the final merit list. It is stated by OSSC that since 23 candidates had tied at the cut off mark 102, the Commission followed

¶23

WP(C) No.39436 of 2023

¶24

Page 2 of 13

¶25

further process of selection by way of career assessment of candidates inter se tying, as per their rule, i.e. the Odisha Staff Selection Commission Rules, 1993 (1993 Rules). So according to the Commission, the Petitioner who could not be selected within 18 candidates, depending on the vacancy in respect of the cut off mark, her name did not find place in the final merit list.

¶26

Mr. Das, learned counsel for the Petitioner submits that such

¶27

procedure adopted by OSSC to finalize the select list applying career assessment process is completely illegal and unsupported by the prescribed norms. According to Mr. Das in case of tie of two or more candidates, the date of birth according to seniority should be reckoned and not the career assessment scale. It is further submitted that if the seniority of age would be reckoned between the tying candidates, the Petitioner would have been easily selected finding her name within those 18 vacancies fall for the cut off mark 102.

¶28

Conversely, Mr. Pattnaik, learned counsel for OSSC contends

¶29

that adopting such procedure of seniority in age is de-hors 1993 Rules and as per Rule 14(iv) of said 1993 Rules, if two or more candidates tie at the same mark their merit shall be further determined based on the

¶30

WP(C) No.39436 of 2023

¶31

Page 3 of 13

¶32

marks secured by such candidates in their academic career and then only the seniority in age would be reckoned. It is therefore submitted by Mr. Pattnaik that the procedure adopted by OSSC is in accordance with the prescribed rules and cannot be termed as illegal.

¶33

Mr. Panda, learned AGA of course supports the stand taken by

¶34

Mr. Pattnaik, learned counsel for OSSC.

¶35

Before delving into the rival contentions, the facts which remained undisputed are stated as follows:

¶36

i) First , the securing of mark of 102 by the Petitioner and the same being the cut off mark in the selection process are admitted.

¶37

ii) Secondly , it is also admitted that name of the Petitioner was not placed in the final select list for the reason that further selection has been done in the same cut off mark, where 23 candidates were tying, by way of academic career assessment.

¶38

WP(C) No.39436 of 2023

¶39

Page 4 of 13

¶40

iii) Thirdly , It is also admitted that out of such 23 tying candidates only 18 have been qualified to be included in the final merit list and the Petitioner is placed at serial No.19.

¶41

These being the admitted facts, the question falls for determination is, whether adoption of career assessment process for further selection between the tying candidates is valid and in terms of the existing norms / rules ?

¶42

It would be beneficial here to quote Rule 14 of 1993 Rules at the first instance. The same is reproduced below:-

¶43

“14. The following guidelines shall be followed in conducting recruitment to various posts and services by the Commission, namely,

¶44

(i) There shall be a written test for every category of recruitment.

¶45

(ii) In addition to the written test viva voce test may be conducted by Commission if it is satisfied that such test is necessary to select candidates for the post for which examination is held.

¶46

(iii) Method of central evaluation of answer papers shall be such as may be decided by the Commission.

¶47

(iv) If two or more candidates have obtained equal marks in the aggregate, the order of merit shall be determined in

¶48

WP(C) No.39436 of 2023

¶49

Page 5 of 13

¶50

accordance with the marks secured by such candidates in their respective academic career and if the marks thus secured are equal then the merit shall be decided according to their seniority in age.

¶51

(v) Any other standards and syllabus prescribed by the Government, if any, for any particular post / service from time to time shall be adopted.”

¶52

It is important to be mention here that Rule 6-A was inserted by way of amendment to 1993 Rules, which reads as under:-

¶53

“6-A. Notwithstanding anything contained to the contrary in the relevant recruitment rules, no career assessment shall be made in the process of selection in respect of Group-B and Group-C post and services.”

¶54

Here one more aspect also needs to be mentioned, i.e. another rule called Odisha Civil Services (Method of Conducting Physical Standard Measurement and Physical Efficiency Test and Discontinuance of Career Assessment) Rules, 2021 (2021 Rules). This rule was introduced by the Government of Odisha by General Administration and Public Grievances Department. In said Rules “Career Assessment” is discontinued as the assessment made on the basis of marks or divisions or grades allotted in the examination conducted by the educational institutions. Further rule 4 of the said 2021 Rules prescribes cessation of career assessment process and Rule

¶55

WP(C) No.39436 of 2023

¶56

Page 6 of 13

¶57

5 stipulates overriding effect of that 2021 Rules. Both Rule 4 and 5 are read as under:-

¶58

“4. Career Assessment to be discontinued.- Notwithstanding anything contained in any recruitment rules regulating the method of recruitment in Civil Services and / or Civil Posts in respect of different posts and services in the State cadre and District cadre of the State Government, there shall not be any career assessment at the time of initial recruitment to fill up different posts and services.

¶59

Overriding effect.- The provisions of these rules shall have overriding effect on all the recruitment rules or executive instructions or order issued by the Administrative Departments governing the method of recruitment procedure.”

¶60

So what is seen that there are conflicting provisions existing in 1993 Rules itself and at the same time, overriding effect of 2021 Rules is there. First to deal with Rule 6-A and Rule 14(iv) of 1993 Rules, it is seen that Rule 6-A has been inserted by way of amendment on 3^rd March, 2020, which starts from the word “ Notwithstanding ……..”. This means the Legislature has the knowledge of prescription in Rule 14(iv) while inserting Rule 6-A in the statute itself and they did not bother to amend such portion of Rule 14(iv). Therefore taking advantage of such position in 1993 Rules after its amendment in 2020, Mr. Pattnaik substantiates his stand that Rule 14(iv) has been adopted

¶61

WP(C) No.39436 of 2023

¶62

Page 7 of 13

¶63

in evaluating the career assessment for breaking the tie in the selection process.

¶64

I disagree to such contention of Mr. Pattnaik. It is for the reason

¶65

that Rule 14(iv) cannot be read in isolation without Rule 6-A and without the overriding effect of 2021 Rules. When Rule 6-A was inserted much after the existence of Rule 14(iv) starting with the word “ Notwithstanding ……”, the provisions relating to assessment of academic career for tie off candidates cannot be applied excluding all other provisions. Further, the provisions of 2021 Rules cannot also be thrown out absolutely to apply such a prescription in Rule 14(iv) of 1993 Rules.

¶66

It is true that the advertisement was issued in 2022, i.e. after coming into force of 2021 Rules as well as insertion of Rule 6-A to 1993 Rules. At the same time, it is also true that there is no clear statutory rule governing the recruitment conditions for the posts of TGT teachers, though a rule called Odisha Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 is prevailing for direct recruitment for Assistant Teachers of High Schools and other posts. But the same was prescribing a different

¶67

WP(C) No.39436 of 2023

¶68

Page 8 of 13

¶69

procedure other than mentioned in the present advertisement. It is also not the case of either party that, the same has any application to present process of recruitment to the posts of TGT teachers, and neither any pleading to that effect has been made in the writ petition nor in counter affidavits. Therefore, in the present situation what is required to be seen is that, what would be the remedy in case of conflict in the provisions of rules.

¶70

Hon’ble Supreme Court in the case of Ajoy Kumar Banerjee v.

¶71

Union of India, AIR 1984 SC 1130 have explained as follows:-

¶72

“38. …………..As mentioned hereinbefore if the scheme was held to be valid, then the question, what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle “Generalia specialibus non derogant.” The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied;

¶73

(i) The two are inconsistent with each other,

¶74

(ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail.”

¶75

WP(C) No.39436 of 2023

¶76

Page 9 of 13

¶77

14. Further in R.S. Raghunath v. State of Karnataka & Anr., AIR

¶78

1992 SC 81 , it is observed by the majority view that “ when the

¶79

general rules where enforced the Special Rules were already holding the field, the Special Rules being “law” the application of the General Rules is excluded to the extent the field is occupied by the Special Rules. ”

¶80

Similarly the Supreme Court in The State of Uttar Pradesh v. Karunesh Kumar & Ors., C.A. No.8822-8823 of 2022 , disposed of on 12^th December 2022, by relying on the case of Ajoy Kumar Banerjee (supra) have observed that the later rules, even though general in nature will govern the field when to statutes of rules are found inconsistent with each other.

¶81

In the instant case, as stated above, Rule 6-A of 1993 Rules and 2021 Rules are while speaking of discontinuance of prescriptions of career assessment, only Rule 14(iv) of 1993 Rules prevail to the extent for assessment of academic career in case of tying off candidates at the same mark. When Rule 6-A of 1993 Rules have been brought in amendment in much later part i.e. in 2020 and further, the general rule introduced by the G.A. Department in 2021, the provisions therein

¶82

WP(C) No.39436 of 2023

¶83

Page 10 of 13

¶84

would prevail over the prescription of Rule 14(iv) in 1993 Rules in respect of career assessment, and so the career assessment process in the present case is not a valid procedure.

¶85

Besides above, Mr. Das, learned counsel for the Petitioner has brought to the notice of this Court various other advertisements of same OSSC Viz., advertisement No.IIE-120/2022-6506 dated 2^nd November 2022 and advertisement No.IIE-49/2023/4812 dated 8^th December 2023, wherein it is prescribed that the selection procedure would be seniority in age in case of tying off two and more candidates at the same mark. Here it is answered by Mr. Pattnaik that since there are several different recruitment rules in respect of such posts advertised the criteria for assessment by way of seniority in age has been mentioned in terms of respective rules. But I fail to conceive to such explanation given by Mr. Pattnaik. It is for the reason that neither

¶86

any specific rule is governed for recruitment to the post of Trained Graduate Teachers (TGT) except the Odisha Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 stated earlier. And further, the advertisement itself does not prescribe any procedure for selection of the candidates in case of tie off of two and more candidates.

¶87

WP(C) No.39436 of 2023

¶88

Page 11 of 13

¶89

In view of the discussions made above and the reasons stated, this Court is of the concluding view that such a process adopted by OSSC to exclude the Petitioner’s name from the final select list is illegal and the right procedure should be seniority in age as per the prevailing rules. Now the question arises that whether the Petitioner can be extended with the benefit of appointment at this stage?

¶90

This Court in the interim order dated 6^th December 2023 has

¶91

directed for keeping one post vacant in the TGT (Arts) in UR(W) category. The vacancy in one post pursuant to direction of this Court has been confirmed by the State in affidavit of the Director of Secondary Education dated 10^th September 2024. Further, Mr. Pattnaik, learned counsel for OSSC files the list of dates of birth of such 23 candidates tying at the mark 102. In the said list the Petitioner’s serial number by seniority in age comes at SL No.3. Therefore, no legal hindrance is seen in directing for appointment of the Petitioner in the post kept vacant pursuant to the direction of this Court. Accordingly, the same is directed.

¶92

In the result, the writ petition is allowed and the Opposite Parties are directed to give appointment to the Petitioner in TGT (Arts) in

¶93

WP(C) No.39436 of 2023

¶94

Page 12 of 13

¶95

UR(W) category in any suitable post within a period of one month

¶96

from the date of receipt of certified copy of this order.

¶97

M.K. Panda, P.A.

¶98

Signature Not Verified

¶99

Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 17-Sep-2024 17:38:24

¶100

WP(C) No.39436 of 2023

¶101

Page 13 of 13

Swagatika Mishra v. State of Odisha

Case brief

What is this about?

What did the court decide?

Swagatika Mishra v. State of Odisha

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Palaka Rama Rao Vs State of Odisha

Kamalini Dhal Vs State of Odisha

Debashis Hazra Vs State of Orissa

Suryamani Panda Vs State of Odisha

Kailash Chandra Mohapatra Vs State of Odisha

Akshaya Kumar Panda Vs State of Odisha