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Judgment
By the Bench;
This matter is taken up through hybrid mode.
The instant Intra-Court Appeal has been filed assailing the judgment dated 22nd December, 2023 passed in W.P.(C) No.16354 of 2018.
The factual backdrop of the case relevant for adjudication of this Intra-Court appeal, is that W.P.(C) No.16354 of 2018 was filed by Respondent No.1-Kumudini Dash (Petitioner therein) challenging her order of disengagement dated 9th October, 2018 passed by the District Project Coordinator, Sarva Shiksha Abhiyan (SSA), Bhadrak. Respondent No.1 also sought for certain other consequential reliefs in the Writ Petition. By then, she was continuing as Sikshya Sahayak in Gobindpur Nodal UP School, Dhamnagar Block in the district of Bhadrak. While continuing as such, Respondent No.1 received letter No.13272 dated 22nd September, 2008 issued from District Office, SSA, Bhadrak to remain present on 1st October, 2008 along with her original certificates and mark sheets for verification. On verification, it was found that certificates produced by Respondent No.1 were genuine. However, to her utter surprise, she was intimated that the calculation of marks was erroneous as the marks awarded to Respondent No.1 in extra-optional paper was taken into consideration while issuing appointment letter. On receipt of such letter dated 22nd September, 2008, Respondent No.1 was constrained to approach this Court in W.P.(C) No.14761 of 2008. During pendency of the said Writ Petition, she was disengaged from her services vide letter dated 9th October, 2008. Assailing the same, Respondent No.1 filed W.P.(C) No.16354 of 2018 and the order passed therein is under challenge in the present Intra-Court Appeal by the State.
Learned Single Judge, in its order dated 22nd December, 2023, while disposing of the Writ Petition, held that Respondent No.1 was not at fault for the wrong calculation of marks. As such, she should not be prevented from discharging her duties. It is, therefore, directed to reinstate Respondent No.1 immediately with arrear salary.
Mr. Biswal, learned ASC appearing for the Appellants-State submits that there were two vacancies for CT-UR (Female)-PH (ENT) category in the advertisement and two candidates were already engaged against the said post after disengagement of Respondent No.1. Thus, there is no post to accommodate Respondent No.1 in the post of Sikshya Sahayak in respect of the vacancy of that year. It is further submitted that during course of recruitment, there was, of course, a mistake committed by the District Project Coordinator, SSA, Bhadrak in selecting Respondent No.1 by calculating the percentage of marks obtained by her in extra-optional paper and giving her engagement as Sikshya Sahayak. But when such mistake (calculation of marks) came to notice, Respondent No.1 was disengaged. Thus, there was no illegality in disengaging her from service.
The Writ Appeal was earlier taken up on 25th August, 2026, when Mr. Misra, learned Senior Advocate appearing for Respondent No.1 relied upon ratio in the case of Tarunakanti Sethi vrs. State of Orissa and others; 110 (2010) CLT 545, wherein, it is held as under:-
“6.Learned Standing Counsel for School & Mass Education Department filed a resolution No 29557/S & M.E. dated 04.11.2000, wherein it has been mentioned that the marks secured 4th optional or extra-optional subject in HSC Examination is to be deducted from the total marks for arriving at the effective percentage of marks [Clause-10(a)]. This clause is not applicable to this case as in the present case the qualifying mark is the marks obtained in +2 Examination. Such clause should not be invoked to apply to cases where +2 Examination is to be considered as the qualifying examination. Moreover, it is seen that in this case the extra optional is in the discipline of education. In view of the fact that the Petitioner is to be engaged as SS in the absence of trained candidates and the Petitioner has received training in education as an extra optional, it should be rather counted in her favour. In cases where the candidates opt for extra optional, then she puts in more labour & also acquires knowledge in an additional subject. In recognition of such additional labour & knowledge, bonus marks equal to marks secured in such paper, minus the minimum pass mark is added to the total mark. There is no logical & cogent reason why such excess of marks should not be accredited to the candidates, especially when such marks are taken into consideration while determining the division of the student." (emphasis supplied)
Thus, it was submitted by Mr. Mishra, learned Senior Advocate that there is no logic or basis behind deducting the marks secured by Respondent No.1 in extra-optional while calculating percentage of marks.
Mr. Biswal, learned ASC, on that date, prayed for an adjournment to examine the said case law and address the Court.
Today, Mr. Biswal, learned ASC, after examining the case law in Tarunakanti Sethi (supra) submits that the ratio decided therein is squarely applicable to the case of Respondent No.1. He, however, insisted that the post in which the Respondent No.1 was continuing, has already been filled up by Respondent Nos.3 and 4 (Opposite Party Nos.5 and 6 in the Writ Petition).
On examination of record, it appears that Respondent No.4, namely, Prasantilata Das has been directed to be appointed/engaged against supernumerary post vide judgment dated 18th March, 2011 passed by a coordinate Bench of this Court in WA No.110 of 2009. (Copy of the order has been enclosed as Annexure-15 to the Writ Petition). For better appreciation, the relevant paragraph of the said order is reproduced hereunder:-
“5.On consideration of the submissions of the learned counsel for the parties and after perusal of the pleadings as well as the documents relied upon, we are of the considered view that since the appellant has suffered due to no fault of her we direct the opp. Party authorities to create super numeral post for the appellant and keep her engaged till a regular vacancy occurs.”
In the said Writ Appeal, Respondent No.4 herein was the Appellant. It is further submitted by Mr. Mishra, learned Senior Advocate that Respondent No.1 was engaged as Sikshya Sahayak in Govindpur Nodal UP School, which has been subsequently merged with Korua-Govindpur High School with effect from 20th December, 2017. Although Respondent No.1 is continuing in her post as Sikshya Sahayak and performing duties, but she is not being paid her salary. No response to the said statement made by the Respondent No.1 in her Rejoinder Affidavit (filed in the Writ Petition), has either been given by the State Government in the Writ Petition or in the present Writ Appeal.
Mr. Mishra, learned Senior Advocate submits that Respondent No.1 has no quarrel with Respondent Nos.3 and 4. They were made parties only for reference. Their engagement does not affect either reengagement of Respondent No.1 or her continuance.
Mr. Das, learned counsel for Respondent No.3 submits that since the Respondent No.1 does not claim any relief against her or Respondent No.4, he has nothing to submit in the present Writ Appeal.
Mr. Mishra, learned counsel for Respondent No.4 also reiterates the submission made by Mr. Das, learned counsel for Respondent No.3.
This Court also finds the learned Single Judge has not made any observation in respect of either Respondent No.3 or 4 in the impugned judgment.
In view of the discussion made above, we find no substance in the submission of Mr. Biswal, learned ASC. Engagement and continuance of Respondent Nos.3 and 4 have nothing to do with the reengagement and continuance of Respondent No.1 in her post as Sikshya Sahayak. Mr. Biswal, learned ASC also could not point out any patent illegality or infirmity in the impugned judgment.
In that view of the matter and more particularly when Mr. Biswal, learned ASC submits that ratio in the case of Tarunakanti Sethi (supra) squarely applies to the case of Respondent No.1, we find no merit in the Writ Appeal.
Accordingly, the instant Writ Appeal is dismissed. It is expected that the impugned judgment under Annexure-1 be given effect to as early as possible, preferably within a period of eight weeks hence.
Urgent certified copy of the judgment be granted on proper application.