Dismissed¶60

Narayana Behera v. State

Service law – Sikhya Sahayak – Second phase recruitment of 2003-04

Orissa HC12 Feb 2025WP(C)/5756/2009

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Case brief

AI extract

What is this about?

Sikhya Sahayak; second phase recruitment 2003-04; engagement after 26.09.2003 held irregular; Hrushikesh Bindhani vrs. State of Odisha, W.P.(C). No. 11748 of 2003 (order dated 29.04.2004); re-selection in 2004-05 merit list; fresh engagement order dated 01.01.2005; reckoning of service/seniority from re-engagement, not initial engagement; Career Advancement denied by Collector, Dhenkanal (Annexure-10 dated 11.04.2008); parity with first-phase late joiners rejected; no direction to invalidate post-26.09.2003 engagement orders; writ petition dismissed.

What did the court decide?

The petitioner could not qualify for selection in the 1st phase, having secured less marks than the last selected candidate of his category (SEBC male); his selection was against the 2nd phase posts. ¶47

Narayana Behera Vs State — Writ and Judicial Review | Orissa HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 11.04.2008 (Annexure-10) passed by the Collector, Dhenkanal denying Career Advancement to the petitioner is illegal, arbitrary and discriminatory and liable to be quashed. +3 more

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Court's answer

No reason to interfere with the order dated 11.04.2008 passed by the Collector, Dhenkanal (Annexure-10).

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Ratio / Principle

The petitioner could not qualify for selection in the 1st phase, having secured less marks than the last selected candidate of his category (SEBC male); his selection was against the 2nd phase posts.

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Key takeaways

For all practical purposes, the date of valid engagement of the petitioner has to be treated as 18.01.2005, pursuant to the engagement order dated 01.01.2005 issued after his re-selection in the 2004-05 merit list.ratio¶50
Continuation in service pending re-selection did not transform the petitioner's service into regular service nor confer validity upon it; it was an arrangement made by the authorities to prevent dislocation in the teaching process.ratio¶53
The petitioner's claim to treat his service from his initial date of appointment is untenable, being contrary to the ratio decided in Hrushikesh Bindhani vrs. State of Odisha (W.P.(C). No. 11748 of 2003, disposed of on 29.04.2004).

Detailed headnote1 paragraphs

Service law – Sikhya Sahayak – Second phase recruitment of 2003-04 – Engagement of candidates after 26.09.2003 held irregular by this Court in Hrushikesh Bindhani vrs. State of Odisha, W.P.(C). No. 11748 of 2003 (disposed of 29.04.2004) – Petitioner, though initially engaged on 09.12.2003 (joined 15.12.2003), was re-selected in the 2004-05 merit list and issued a fresh engagement order dated 01.01.2005 – Denied Career Advancement by Collector, Dhenkanal's order dated 11.04.2008 (Annexure-10) – Held: continuance in service pending re-selection was merely an arrangement to prevent dislocation in the teaching process and neither regularised the service nor conferred validity on it; the date of valid engagement is to be treated as pursuant to the fresh engagement order dated 01.01.2005; first-phase appointees who joined later stood on a different footing; the claim to reckon service from the initial date of engagement is untenable being contrary to the ratio in Hrushikesh Bindhani; no ground to interfere with Annexure-10 or to direct invalidation of engagement orders of post-26.09.2003 joiners – Writ application dismissed as devoid of merit.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). No. 5756 of 2009

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(An Application under Articles 226 & 227 of the Constitution of India)

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--------------Narayan Behera ...… Petitioner -Versus-

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State of Odisha and Others .... Opposite Parties

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For Petitioner : Mr. S.K.Nath, Advocate,

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For Opp. Party : Mr. S.N.Pattnaik,

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Additional Government Advocate for the State.

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_______________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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12^th February, 2025

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SASHIKANTA MISHRA, J.

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The petitioner has approached this Court with the

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following prayer;

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“The petitioner therefore prays that your lordships may graciously be pleased to:-

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I) hold/declare that the order passed by the Collector, Dhenkanal on 11.04.08 as at Annexure-10 is illegal, arbitrary, discriminatory and unsustainable in eye of law and thereby quashing the Annexure-10.

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ii) direct the opp. Parties, especially the Collector, Dhenkanal to invalid the engagement order of the candidates who have been engaged/joined after

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26.09.2003 as Sikshya Sahayak along with the petitioner during the year 2003-04 in view of the decision of the Hon’ble High Court in W.P.(C) No. 11748/03 as well as the letter of the Director;

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iii) pass such other order (s)/direction (s) as would deem fit and proper; And for which act of kindness, the petitioner as in duty bound shall ever pray.”

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The facts of the case are that the petitioner was

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appointed as Sikhya Sahayak as per engagement order issued on 09.12.2003 by the Chief Executive Officer, Zilla Parishad-Cum- Collector, Dhenkanal. Such engagement

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was pursuant to an advertisement issued in the year 2003. He joined on 15.12.2003 in Guagaria Primary School and is continuing as such till date. In the said selection, 56 Sikhaya Sahayaks were appointed but engagement orders were issued in five phases on different dates. While the matter stood thus, this Court in W.P.(C). No. 11748 of 2003 in the case of Hrushikesh Bindhani

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and others vrs. State of Odisha, vide order dated 29.04.2004 held that the engagement of the candidates after 26.09.2003 pursuant to the advertisement of the

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year 2003 was irregular and that they should apply again for re-engagement. Accordingly by a notification dated 23.09.2004 of the Director, notification was issued in the

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year 2004-05 for those candidates. Out of the 56

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candidates appointed earlier, 37 candidates including the petitioner were affected by the order of this Court. They were issued with fresh engagement orders on 01.01.2005. According to the petitioner, after passing of the order of this Court in Hrushikesh Bindhani (supra) he was neither called upon to apply again nor was ever disengaged but received a fresh engagement order.

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When the matter stood thus, the authorities decided to grant career advancement pay as per decision of the Government taken on 31.05.2006 to the effect that a Sikhya Sahayak on completion of 3 years will be eligible to get salary of Rs. 2,500/- and on completion of 4 years, he will be treated as Junior Teacher and on completion of

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5 years he will be treated as Regular Primary School Teacher. Since the petitioner fulfils the above criteria, he is eligible for the benefits under the same. The BDO, Hindol submitted proposal for 53 candidates, who were recruited in the year 2003-04, wherein the name of the petitioner found place at Sl. No. 34. Basing on the same, the Collector issued an order on 11.04.2008 granting

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Career Advancement to 42 out of 53 Sikhya Sahayaks

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excluding the others including the petitioner and the other. The petitioner and others ventilated their grievance before the Collector but were informed that as their initial appointment was held to be illegal by the High Court in the case of Hrushikesh Bindhani , they were not eligible

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for the Career Advancement. The petitioner however, contends that 4 candidates engaged on the same day as the petitioner i.e. 15.12.2003 were granted the benefit for which non-grant of the same to the petitioner is illegal.

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Counter affidavit has been filed by the Opposite Party authorities. It is basically stated that Career

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Advancement was granted to 42 nos of Sikhya Sahayaks as their engagement was not declared irregular by this Court because they were engaged in the 1^st phase recruitment as per letter dated 18.02.2003 of the Government, though they joined after 26.09.2003. The petitioner was engaged against the 2^nd phase sanctioned posts during year 2003-04, which was declared illegal by this Court. He was asked to apply again and was reselected in the merit list of 2004-05 and was issued with fresh engagement order. Hence, he is ineligible for

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career advancement. It is further stated that posts were sanctioned in the year 2003-04 in two phases. In the 1^st phase, 56 posts were sanctioned out of which 70% was fixed for candidates having Matric/+2 with C.T. qualification and 30% for candidates having B.A./B.Com/B.SC with B.Ed qualification. So from the posts meant for C.T. candidates 39 selected were under SEBC category. The last person to be selected under SEBC male category secured 88.86%. The petitioner secured 86.28%. Therefore, he did not come under the 1^st phase recruitment. He was selected in the 2^nd phase which was declared illegal by this Court. He was therefore, issued with fresh engagement order on 11.01.2005, pursuant to which he joined. Therefore, his seniority will be counted from the date of his new appointment during the year 2004-05. It is also stated that though the engagement of the 2^nd phase candidate was held to be irregular, the Government decided not to disengage them to avoid major dislocation in the teaching process but ultimately they were reselected.

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Heard Mr. S.K.Nath, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned AGA for the State.

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Mr. Nath would argue that the petitioner though appointed purportedly in the 2^nd phase of the selection of the year 2003-2004 and said appointment was held to be irregular, he was never disengaged and continued to discharge his duties. The fresh engagement order issued was a mere formality, which did not change the factual position that he was rendering service even at that time and that too in the same school. Moreover persons joining after 26.09.2003 like the petitioner have been granted career advancement benefits. According to Mr. Nath the service of the petitioner ought to be reckoned from his initial date of engagement and not reengagement.

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Per contra, Mr. Pattnaik would argue that admittedly the petitioner was appointed in the 2^nd phase selection made in relation to the vacancies of the year 2003-2004. This Court categorically held such selection and engagement as irregular and held that those candidates can apply in pursuance of the fresh advertisement. In

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fact, the petitioner was also selected again and was issued with an engagement order. Since this Court disapproved the selection made of the 2^nd phase candidates, even though he was allowed to continue in service, his service is to be actually counted from the date of his re-engagement.

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The facts of the case are not disputed inasmuch as the

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posts of Sikhya Sahayak were sanctioned during the year 2003-04 in two phases. The petitioner could not qualify for selection in the 1^st phase having secured less marks than the last selected candidate of his category i.e. SEBC male. The averment to the above effect in the counter affidavit has not been specifically denied by the petitioner. His selection was against the 2^nd phase posts.

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This Court, in the case of Hrushikesh Bindhani (supra) disapproved the selection and engagement of the second phase candidates which was on the basis of letter dated 26.09.2003 of the Commissioner-cum-Secretary to Government in S. & M.E Deptt. This Court specifically held that the instructions issued by the Commissionercum-Secretary was contrary to Paragraph 5.4 of the

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guidelines issued by the Government and therefore, directed the authorities to make fresh advertisement for recruitment of 15682 posts of Sikhya Sahayak. Liberty was granted to the petitioner to apply for the said post. The petitioner applied and was also engaged as per office order dated 01.01.2005. So, for all practical purposes, the date of valid engagement of the petitioner has to be treated as 18.01.2005, pursuant to the engagement order dated 01.01.2005.

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It has been argued that despite the directions of this Court in Hrushikesh Bindhani (supra) the petitioner was never disengaged. This has been answered by the State in

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its counter by stating that he was not disengaged anticipating major dislocation in the teaching process until disposal of the review petition filed by the Government or fresh engagement of Sikhya Sahayaks. Subsequently, the Government decided to issue engagement orders to those Sikhya Sahayaks like the petitioners who were re-selected as per the merit list of 2004-05. So only because the petitioner was allowed to continue cannot transform his service as regular or

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confer validity to it as doing so would be contrary to the findings of this Court in Hrushikesh Bindhani . It can be treated as an arrangement made by the authorities to prevent dislocation in the teaching process. It is not the case of the petitioner that he was not remunerated for the services rendered by him during such period. Therefore, his claim to treat his service from his initial date of appointment is untenable being contrary to the ratio decided in Hrushikesh Bindhani vrs. State of Odisha reported in W.P.(C). No. 11748 of 2003 disposed of on

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29.04.2004. As regards the other persons who have been granted career advancement benefits despite joining on or after 26.09.2003, it has been clarified by the State that they were appointees against the 1^st phase selection but actually joined later. Such being the factual scenario, the petitioner’s engagement cannot be treated at par with them.

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For the foregoing reasons therefore, this Court is unable to persuade itself to agree with the contentions raised by the petitioner to justify his claim for treating his service from his initial date of engagement so as to grant

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him career advancement and other benefits from such date.

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This Court therefore, finds no reason to interfere with the order dated 11.04.2008 passed by the Collector, Dhenkanal (Annexure-10) or to grant the other relief and also to direct the Collector to invalidate the engagement orders of candidates who joined after 26.09.2003 along with the petitioner during the year 2003-04.

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