w w w . L a w y e r S e r v i c e s . i n



Prasanta Kumar Nayak v/s State of Odisha & Others


Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- KUMAR L P G PRIVATE LIMITED [Strike Off] CIN = U23201DL2001PTC113203

Company & Directors' Information:- S P NAYAK AND COMPANY PVT LTD [Strike Off] CIN = U99999MH1943PTC003714

Company & Directors' Information:- M KUMAR AND CO PVT LTD [Strike Off] CIN = U18101DL1982PTC014823

Company & Directors' Information:- B N KUMAR & CO PVT LTD [Strike Off] CIN = U52341WB1941PTC010643

Company & Directors' Information:- NAYAK PRIVATE LIMITED [Strike Off] CIN = U19122DL2012PTC238677

Company & Directors' Information:- NAYAK AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999KA1947PTC001182

    WPC (OAC) No. 1629 of 2015

    Decided On, 17 August 2021

    At, High Court of Orissa

    By, THE HONOURABLE DR. JUSTICE B.R. SARANGI

    For the Petitioner: Saswat Das, Advocate. For the Respondents: S. Jena, Standing Counsel.



Judgment Text

1. The petitioner, who belonged to SEBC category and a Graduate in Arts in Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha and passed B.Ed. with Hindi as one of the subjects and medium of examination was Hindi, had applied for the post of contractual Hindi Teacher pursuant to resolution issued by the Government of Orissa, School and Mass Education Department dated 27.10.2014 in Annexure-1. His candidature having been rejected vide Annexure-10, he has filed this writ petition seeking following relief:"(a) Admit the writ application:(b) Call for the records.(c) (i) Issue appropriate writ/writs, order/orders to quash the rejection of the petitioner's candidature to the post of Contractual Hindi Teacher as per Annexure-10.(i-a) Issue appropriate writ/writs, order/orders, direction/directions quashing the condition of having B.Ed. in Hindi/Parangat from 3 particular institutions, i.e., under Sub- Clause (d) to Clause (2) of the Advt. dated 27.10.2014, i.e.; Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/ B.H.Ed. (a course prescribed by NCTE) from an institution recognized by NCTE and affiliated to a recognized University/ B.Ed in Hindi (Course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, an institution recognized by NCTE and affiliated to a recognized University under Annexure-1.(ii) Issue appropriate writ/writs, order/orders, direction/directions to declare that the B.Ed. from Jammu University with Hindi as one of the subject and medium of examination in Hindi as the requisite qualification for Hindi teacher as require by the State Government and the petitioner be made eligible to remain in draft select list.(iii) any other order/orders, direction/directions be issued as would be deemed fit and proper to give complete."2. The factual matrix of the case, in hand, is that in exercise of power conferred under clause (d)(i) of Sub-section (2) of Section 32 read with Section 12 (d) of the National Council for Teacher Education Act, 1993, the Council framed a regulation called, "National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001", which came into force from the date of its publication in the official gazette no. 238 dated 04.09.2001 in Annexure-11. On 31.05.2007, in Annexure-15 to the writ petition, a clarification was issued by the NCTE to all the Education Secretaries/ All States Govts./U.Ts as per list that the degrees obtained by the persons from the institutions recognized by the Govt. of J & K/UGC would be eligible for employment in Central Govt. and other State Governments. Consequentially, Utkal University of Odisha vide Annexure-16 dated 15.12.2011 declared the B.Ed and M.Ed course imparted by as many as 61 institutions equivalent to the B.Ed/B.Ed Special Education/M.Ed of Utkal University. The name of Jammu University finds place at serial no.19.2.1 The petitioner passed B.Ed. examination in the year 2013 from University of Jammu in 2nd division in theory and 1st division in practice of teaching, the medium of teaching and examination was Hindi and the result was declared on 15.03.2014 vide Annexures-6 and 7 to the writ petition. When the matter stood thus, the Government of Odisha, Department of School and Mass Education, vide resolution dated 27.10.2014 in Annexure-1, prescribed recruitment procedure of teaching staff in Govt. Secondary Schools. It includes the criteria to fill up the post of Contract Teacher Hindi/Hindi Teacher. The said resolution was treated as an advertisement for recruitment to the post of contract teachers. Subsequent to the advertisement, a district- wise contract teacher vacancy in respect of 5634 posts was published by the authorities in their official website. As per the advertisement, the last date for receiving the application forms from the intending candidates was fixed to 20.11.2014. The petitioner, having fulfilled the eligibility criteria, applied for the post of Contract Teacher Hindi in respect of five districts, before expiry of the last date, in the following preferences, (i) Jajpur, (ii) Jagatsinghpur, (iii) Ganjam, (iv) Balasore and (v) Angul, vide Annexure-21.2.2. In exercise of power conferred under clause (dd) of Sub-section (2) of Section- 32 read with Section -12(a) of National Council for Teacher Education Act, 1993 and in supersession of National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001, the National Council framed a regulation called, "National Council for Teacher Education (Determination of Minimum Qualification for Persons to be Recruited as Education Teachers and Physical Education Teacher in Pre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges (Regulation), 2014". The above Regulation was notified in the Gazette of India on 16.12.2014. A corrigendum was issued to the resolution/advertisement in Annexure-1 extending the last date of receipt of application to 28.01.2015, as per Annexure-J to the affidavit dated 16.03.2021. After due verification of documents, a check list was issued by the verifying officer on 16.03.2015 vide Annexure-8. The provisional tabulation sheet of applicants for the post of contractual teacher, in response to the advertisement dated 28.10.2014 to 21.11.2014 and 13.01.2015 to 28.01.2015, was published by opposite party no.2, vide Annexure-9, where the name of the petitioner finds place at serial no. 203. A list of candidates, whose candidature was rejected by the opposite parties for the post of Hindi Teacher, was published in the official website of opposite party no.2. The name of the petitioner finds place at serial no. 535 with the remark "NOT HAVING REQUISITE QUALIFICATION" in the remarks column. Being aggrieved by rejection of his application, for not having requisite qualification, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No. 1629(C) of 2015. On abolition of the tribunal, the matter has been transferred to this Court and re-numbered as WPC (OAC) No. 1629 of 2015.3. Mr. Saswat Das, learned counsel for the petitioner vehemently contended that educational qualification prescribed for Hindi Teacher, as per advertisement dated 27.10.2014 under Annexure-1, only lays emphasis on having training qualification from Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/B.H.Ed. (a course prescribed by NCTE) from an institution recognized by NCTE and afflicted to a recognized university/B.Ed. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, a institution recognized by NCTE and affiliated to a recognized university. As the petitioner acquired B.Ed. qualification from Jammu University, that has not been prescribed in the education qualification for Hindi Teacher. Consequently, the petitioner?s application has been rejected by the authority, though such reason for rejection has not been indicated in Annexure-10. But, subsequently, by way of filing counter affidavit, the same has been clarified, which the authority could not have. As such, the reason for rejection of application of the petitioner should have been indicated and in absence of any reason thereof and subsequent clarification issued by the authority in counter affidavit cannot sustain in the eye of law and the same is liable to be quashed. It is further contended that the Educational Qualification for Hindi Teacher also indicates that the untrained candidates shall have to undergo required training within a time line as prescribed by the Government. If an untrained candidate can be considered for giving appointment as Hindi Teacher, the petitioner, having stood in better footing than those persons, as a trained B.Ed. from Jammu University, and having passed the same by Hindi medium recognized by NCTE and affiliated to Utkal University, his application could not have been rejected on the ground that qualification has not been prescribed in the resolution itself. It is further contended that the stipulation fixed for Hindi Teacher for educational training qualification only confined to two institutions, which is arbitrary, unreasonable and contrary to the provisions of law, and thus seeks for quashing of that portion of fixation of qualification by the authority, on the ground that qualification acquired from an institution recognized by the NCTE and affiliated by a recognized University should have been given the benefits and exclusion thereof, amounts to discrimination and violative of Articles 14 and 16 of the Constitution of India.To substantiate his contentions, he has relied upon the judgments in Dr. (Major) Meta Sahai vrs. State of Bihar and Others, 2019 (17) SCALE 718 and Babita Manjari Pratihari vs. State of Odisha & Ors. (WPC(OAC) No. 1975 of 2015, disposed of on 23.07.2021).4. Per contra Mr. S. Jena, learned Standing Counsel for School and Mass Education Department contended that the petitioner is not entitled to get relief sought in the application itself, in view of the fact that having participated in the process of selection and not come out successful, he cannot turn around and challenge the same by way of filing this application. He further contended that the educational qualification prescribed for Hindi Teacher in the advertisement may not be modified or interfered with by the Court, when the process of selection has already been concluded and the recruitment has already been made pursuant to such qualification. As such, the petitioner initially had not prayed for interfering with the condition stipulated in the advertisement, but, subsequently, pursuant to order dated 04.03.2020 passed in I.A. No. 47 of 2020, by way of amendment the prayer (i-a), for quashing sub-clause (d) of Clause-2 of the advertisement (which is not correct rather sub-clause (f) of Clause-3 is the correct provision) has been incorporated, which is not permissible in law. It is further contended that with eyes wide open, the petitioner submitted his application as per the prevailing educational qualification applicable to the Hindi Teacher knowing very well that the persons having acquired training qualification from those two institutions are only eligible and the institution, wherefrom the petitioner acquired training qualification, having not been included in the advertisement itself, the application made by him cannot sustain and on that ground his application having been reject, he cannot say that the condition so stipulated is arbitrary, unreasonable and contrary to the provisions of law. Therefore, the writ petition has to be dismissed. To substantiate his contention, he has relied upon the judgments of the apex Court in Om Prakash v. Akhilesh Kumar, AIR 1986 SC 1043; Madan Lal v. State of Jammu and Kashnir, AIR 1995 SC 1088; K.H. Siraj v. High Court of Kerala; 2006 SC 2339; Union of India v. S. Vinod Kumar, AIR 2008 SC 5.5. This Court heard Mr. Saswat Das, learned counsel for the petitioner and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department by hybrid mode. Pleadings having been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.6. For just and proper adjudication of the case, Clause-3 of the resolution/advertisement, which prescribes the educational qualification for the post of Hindi Teacher, is extracted hereunder:-"3. Educational Qualificationxx xxx xxx(f) Hindi Teacher-Bachelor's degree from a recognized University with Hindi as one of the elective subject with minimum 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates)or with Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardhaor with Sastri from Orissa Rastrabhasa Parisaca, Purior with Snataks (Acquired by June-2005, the date up to which the temporary recognition has been granted) from Hindi Sikshaya Samiti, Orissa, Cuttackor an equivalent degree from a recognized institution with at least 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) andHindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/B.H.Ed. (a course prescribed by NCTE) from a Institution recognized by NCTE and affiliated to a recognized university/B.Ed. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, a institution recognized by NCTE and affiliated to a recognized university.OrBachelor's degree with Hindi as one of the optioral/Hons. subject with minimum 50% of marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) andM.A. in Hindi with minimum 50% marks in aggregate from a recognized University.(The untrained candidates shall have to undergo required training within the timeline as prescribed by Govt.)"On perusal of the above mentioned educational qualification prescribed in the resolution, which has been considered as advertisement for recruitment to the post of Hindi Teacher, it is evident that a candidate must have different qualifications as prescribed therein along with training qualification acquired from two institutions, namely, (1) Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/B.H.Ed. (a course prescribed by NCTE) from an institution recognized by NCTE and affiliated to a recognized university, and (2) B.Ed. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, a institution recognized by NCTE and affiliated to a recognized university.7. Admittedly, the petitioner has acquired B.Ed. training qualification in Hindi from Jammu University as per the certificate produced by him and enclosed as annexures to the writ petition. But, as the training qualification acquired from Jammu University has not been included in the advertisement itself, his application has been rejected vide Annexure-10, though it only reflects "not having requisite qualification" in the remarks column. What requisite qualification, the petitioner does not possess, has not been indicated therein. It is admitted that the petitioner has acquired Bachelor Degree in Arts from recognized university with Rastrabhasa Prachar Samiti, Wardha. That means, he has got initial requisite qualification as per the advertisement, but he does not possess training qualification, as has been prescribed in the advertisement, which was subsequently clarified in the counter affidavit filed by the opposite parties. The very use of the word „and? in the advertisement has disjoined the initial qualification acquired by the petitioner, which is in accordance with the advertisement. Therefore, one may have got initial qualification, but he is bound to acquire the training qualification from the two institutions as prescribed in the advertisement itself. It is therefore clear that by using the word "and", the essential qualification has been disjoined from the training qualification.8. The apex Court, while considering Article 22(7) of the Constitution of India in S. Krishnan v. State of Madras, AIR 1951 SC 301, held that the word „and? should be understood in a disjunctive sense.9. Similarly, while considering Section 5(2)(a) of the Bengal Finance (Sales Tax) Act, 1941, the apex Court in Calcutta Iron Merchant's Association v. Commissioner of Commercial Taxes, (1997) 8 SCC 42, held that the word „and? occurring in Section 5(2)(a) of the Act cannot be read as „or? it shall render the rest of the provision superfluous.10. In Union of India v. Millennium Mumbai, Broadcast Pvt. Ltd, AIR 2006 SC 2751, the apex Court, while considering Section 4 of Telegraph Act (13 of 1885), held that the word „and? occurring in between the words „right to revoke the licence? and „encash and forfeit the bank guarantee? must be read as two separate clauses and it cannot be read as conjunctive.11. If the construction of the use of word „and? will be taken into consideration in the present context, in that case this Court is of the considered view that „and? mentioned in the advertisement has been used as a disjunctive manner. Thereby, a candidate may have different initial qualifications, but he has to possess training qualification acquired from the place mentioned in the advertisement. Consequentially the word „and? used in the advertisement cannot be considered to be „or?, thereby no liberal construction can be given to such meaning rather the meaning is very clear in its grammatical form which is to be given effect to instead of read into same.12. In Banarsidas v. State of U.P., AIR 1956 SC 520, the apex Court held that it is open to the appointing authority to lay down requisite qualifications for recruitment to Government Service.13. In Commissioner, Corpn. Of Madras v. Madras Corpn. Teachers' Mandram, (1997) 1 SCC 253, the apex Court held that it is open to the appointing authority to lay down requisite qualifications for recruitment to Government Service as this pertains to the domain of policy.14. As regards the power of the Court to interfere with the qualification prescribed, the apex Court in Basic Education Board U.P. v. Upendra Rai, (2008) 3 SCC 432 held that the change in eligibility conditions/educational qualifications for the purpose of recruitment has been held to be a policy decision which cannot be interfered with by the courts.15. In Mangej Singh v. Union of India, (1998) 9 SCC 471, the apex Court held that normally, it is for the State to decide the qualification required and the courts cannot substitute the requirements on their assessment of what the requirements should be.16. In O.P. Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110, the apex Court held that when expert qualification is fixed by a competent authority, ordinarily courts will not interfere.17. In The Post Graduate Institute v. Dr. J.B. Dilawari, 1988 (Supp) SCC 355 : AIR 1988 SC 1348, the apex Court, while considering that what should be the qualification for a post is a matter for the administration to decide, held as follows:"Though the Court, it is stated, is the expert of experts, it is proper to take note of its limitations. Realisation of this situation has led to a series of pronouncements where this Court has reiterated the position that matters involving expertise should be left to be handled by expert bodies."18. In view of settled position of law, as indicated above, this Court is not competent to interfere with the qualification prescribed by the authority when the same has already been acted upon. Thereby, the relief sought in Clause-(i-a) cannot be granted to the petitioner.19. An endeavour is made by Mr. Das, learned counsel for the petitioner to pursued this Court stating, inter alia, Jammu University, being an institution recognized by NCTE and affiliated by recognized university, namely, Utkal University, the training qualification acquired by the petitioner from the said institution should have been taken into consideration for upholding the application filed by him instead of rejecting the same. As such training qualification was not indicated in the advertisement, his application has been rejected.20. While entertaining O.A. No.1629 (C) of 2015, the tribunal, vide order dated 13.05.2015, passed the following order:-"Heard Mr. S.R. Mahapatra, learned counsel for the applicant and Mr. S.K. Jee, learned standing counsel, S & M.E.The application of the applicant has been rejected as per annexure-10 at serial No.535 for not having requisite qualification.Learned counsel for the applicant submitted that his qualification besides graduation and Ratna from Rastrabhasa Prachar Samiti, Wardha is B.Ed. in Hindi (a course prescribed by N.C.T.E.) from Jammu University.Learned counsel for the applicant stoutly argued that that B.Ed. from Jammu University with Hindi as subject is recognized as a course prescribed by N.C.T.E. and recognized by Utkal University.Issue notice on admission.Counter be filed within a period of four weeks. Rejoinder, if any, be filed within a period of two weeks thereafter.So far as prayer for ionterim relief is concerned application of the applicant may be considered for further processing by respondent Nos.2 & 3 but his candidature shall abide by the result of the O.A.List this matter after six weeks. Send copies at the cost of the applicant."21. On being noticed, the opposite parties filed their counter affidavit and in paragraph-8 stated that the petitioner does not possess alternative training qualifications prescribed and published in the advertisement, for which his candidature of was rejected. The tribunal, vide order dated 30.01.2018, in O.A. No.1629 (C) of 2015 passed order to the following effect:"Heard learned counsel for the applicant and learned standing counsel, S & M.E.Learned standing counsel, S & M.E. basing on the counter in para-8 submitted that the applicant does not possess alternative training qualifications prescribed and published in the advertisement for which the candidature of the applicant was rejected.Learned counsel for the applicant, on the other hand submitted that as per the resolution no such stipulation is available in the advertisement for which the applicant's candidature cannot be rejected.Considering the submissions, let the District Education Officer, Jajpur to appear in person and show on which ground the application of the applicant has been rejected.List this matter in the next available bench.Send copies."22. A perusal of the counter affidavit would show that opposite party no.2, in paragraphs-7 & 8 thereof, has stated as follows:"7. That, the training qualifications prescribed in the advertisement are crystal clear & unambiguous thus leaving no scope for confusion. Only the training qualification such as:i) Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/ii) B.H.Ed. (a course prescribed by NCTE) from an Institution recognized by NCTE and affiliated to a recognized university/iii) B.E. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, an institution recognized by NCTE and affiliated to recognized university.Have been prescribed and candidates with any of the above said training qualifications shall be considered as per the advertisement. There is no scope in this advertisement to accept any other training qualification for the post of Hindi Teacher.8. In view of the above eligibility criteria prescribed by Govt. and published in the advertisement the applicant was not eligible for the post. He did not possess any of the alternative training qualifications prescribed and published in the advertisement. So the District Education Officer has rightly rejected his candidature for the post of Hindi Teacher."23. As the list of rejected candidates (Hindi Teacher) in Annexure-10 does not indicate the reasons, the same cannot be supp lemented or supplanted by way of affidavit filed on behalf of the opposite parties clarifying the position that the petitioner had no training qualification, for which his candidature has been rejected. The Constitution Bench of the apex Court in Mohinder Singh Gill v. The chief Election Commissioner, New Delhi, AIR 1978 SC 851 in paragraph-8 ruled as follows:"......when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."On perusal of Annexure-10, it appears that the petitioner?s name finds place as against Sl. No.535 and in remarks column, it has been indicated as "not having requisite qualification". But what type of requisite qualification the petitioner does not possess, the same has not been indicated. In absence of any reasons for rejection of petitioner?s application, mere bald statement "not having requisite qualification" cannot sustain in the eye of law. It is well settled principle of law laid down by the apex Court that the administrative authority, while dealing with this type of cases, must give reasons.24. Reasons being a necessary concomitant to passing an order, the authority can thus discharge its duty in a meaningful manner by furnishing the same expressly.In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87, it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915.Similar view has also been taken by this Court in Patitapaban Pala v. Orissa Forest Development Corporation Ltd. & another, 2017 (I) OLR 5 and in Banambar Parida v. Orissa Forest Development Corporation Limited, 2017 (I) OLR 625.25. Admittedly, the petitioner knowing the qualification prescribed by the authority in the advertisement, applied for the post of contractual Hindi Teacher. On the basis of documents filed, a check list was prepared, but no shortfall thereof was pointed to the petitioner. At that stage, his name was found placed at serial no.203 in Annexure-9, but, subsequently his application was rejected vide Annexure-10 bearing serial no. 535 as "not having requisite qualification". Consequentially, it is contended that the petitioner, having participated in the process of selection and not come out successful, cannot turn around and challenge the same. Reliance has been placed by learned Standing Counsel for School and Mass Education on the judgments of the apex Court in Om Prakash, Madan Lal, K.H. Siraj (supra), as well as the order dated 23.03.2021 passed by this Court in W.P.(C) No.82 of 2013.26. There is no dispute with regard to position of law settled in the above judgments, but the apex Court in Dr. (Major) Meta Sahai (supra) has made a departure in paragraphs- 17 and 18 to the following effect."17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 observing as follows:"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission.This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provi

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sions of the Constitution, unless he/she participates in the selection process."27. In the above judgment, their Lordships have differentiated the principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The prescribed qualification is a prescribed procedure, which the petitioner accepted. There is no doubt about it. As Jammu University, from which the petitioner acquired the training qualification, is duly recognized by NCTE and affiliated to Utkal University, therefore, he approached the Odisha Administrative Tribunal.28. As per the advertisement, the untrained candidate shall have to undergo required training within the time line as prescribed by the Government. This clearly indicates that the candidates having no training qualification can also be considered for selection as Hindi Teacher, as per qualification prescribed under Clause-3(f) of the advertisement. Since the petitioner has got the basic qualification and training qualification along with B.Ed. from Jammu University, his application should not have been rejected on the ground of want of requisite qualification. More so, the University from which the petitioner acquired the training qualification is duly recognized by NCTE and affiliated by Utkal University, as is evident from the materials available on record. Therefore, rejection of his application mentioning "not having requisite qualification" cannot sustain in the eye of law. As such, the petitioner has received information under the Right to Information Act, 2005, on 21.12.2016, from the choice list, namely, Angul District, 19.04.2018 there are 24 no. of posts of teachers and out of which 2 belongs to SEBC category and on the basis of R.T.I. information dated 24.02.2018 so far as Jajpur district is concerned, total 42 numbers of posts of contract teacher Hindi are lying vacant, out of which 2 belonged to SEBC category, and on 04.06.2018, the Director of Secondary Education also provided information indicating that out of total 799 contract teachers in Hindi, 388 posts are still lying vacant. Therefore, if the petitioner?s application is considered for selection and engagement as contractual teacher in Hindi, it will not cause prejudice to anyone.29. In view of the aforesaid facts and circumstances, this Court is of the considered view that the relief sought by the petitioner, so far as prayer no.(c)(i-a) is concerned, the same cannot be acceded to, but, so far as relief sought in prayer no.(c)(i) is concerned, as the vacancies are available, the petitioner?s application should be considered for engagement as contract teacher in Hindi as per his choice exercised by him, as expeditiously as possible, preferably within a period of 3 months from the date of communication of this judgment.30. The writ petition is allowed to the extent indicated above. There shall be no order as to costs.
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