Orissa High Court
Varsachala Chetan vs State Of Odisha & Another on 18 November, 2021
ORISSA HIGH COURT: CUTTACK
W.P(C) No. 18119 of 2019
&
W.P.(C) No. 18127 of 2019
In the matters of applications under Articles 226 and
227 of the Constitution of India.
---------------
AFR
In W.P.(C) No. 18119 of 2019
Varsachala Chetan ..... Petitioner
-Versus-
State of Odisha & another ..... Opp. Parties
For Petitioner : M/s. Ramakanta Sahoo,
S. Saurav, Rajjeet Roy
and S.K. Singh Advocates
For Opp. Parties : Mr. J. P. Patnaik
Government Advocate
[O.P.1]
Mr. S.B. Jena and
C.K. Sahoo, Advocates
[O.P.2]
In W.P.(C) No. 18127 of 2019
Mamali Madhusmita Patra and others
..... Petitioners
-Versus-
State of Odisha & another ..... Opp. Parties
// 2 //
For Petitioners : M/s. Debaranayan Patnaik,
B. Baisakh, Advocates,
[Petitioners 1, 2, 3 and 6]
M/s Ramakanta Sahoo,
S. Saurav, Rajjeet Roy
and S.K. Singh, Advocates
[Petitioners 4 & 5]
For Opp. Parties : Mr. J. P. Patnaik
Government Advocate [O.P.1]
Mr. P.K. Mohanty, Senior
Advocate along with
M/s. P. Mohanty, P.K. Nayak,
P.K. Pasayat, Smt J. Mohanty
and S.N. Dash, Advocates.
[O.P.2]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 09.11.2021: Date of Judgment: 18.11.2021
DR. B.R. SARANGI, J. The petitioner in W.P.(C) No.18119 of
2019 seeks the following relief:-
"It is, therefore, humbly prayed that your
Lordships may be pleased to issue Rule NISI calling
upon the O.Ps. to show cause why the impugned order
dt.12.9.2019 under Anx.8 shall not be quashed or set
aside and if no show cause is filed or insufficient cause
is shown, then the impugned order dt.12.9.2019 under
Anx.8 be quashed and direction be issued to the
Odisha Public Service Commission O.P. No.2 to send
the select list incorporating the name of the petitioner
to the Govt (O.P.1) for consideration of appointment in
// 3 //
the post of Dental Surgeon, Group-A (Jr.) of Odisha
Medical Service (Dental) cadre. And pass any other
order/orders as your Lordships may deem fit and
proper in the interest of justice, equity and good
conscience."
Similarly, the petitioners in W.P.(C) No. 18127 of 2019
seek the following relief:-
"It is, therefore, humbly prayed that your
Lordships may be pleased to issue Rule NISI calling
upon the O.Ps. to show cause why the impugned order
dt.12.9.2019 under Anx.8 shall not be quashed or set
aside and if no show cause is filed or insufficient cause
is shown, then the impugned order dt.12.9.2019 under
Anx.8 be quashed and direction be issued to the
Odisha Public Service Commission (O.P. No.2) to send
the select list incorporating the names of the
petitioners 1 to 6 to the Government (O.P. No.1) for
consideration of appointment of the petitioners in the
post of Dental Surgeon, Group-A (Jr.) of Odisha
Medical Service (Dental) cadre. And pass any other
order/orders as your Lordships may deem fit and
proper in the ends of justice, equity & good
conscience."
In both the writ petitions, since the petitioners have
claimed the similar relief, the same were heard together
and are disposed of by this common judgment.
2. For a just and proper adjudication of the case,
the factual matrix of W.P.(C) No. 18119 of 2019 is taken
into consideration.
// 4 //
2.1 On going through the same, it reveals that the
petitioner, having passed the All India Senior School
Certificate Examination, 2013 (+2 Science) from Central
Board of Secondary Education, Delhi and the Bachelors
Degree in Dental Surgery (B.D.S) Examination in March,
2018 from Hi-Tech Dental College & Hospital,
Bhubaneswar, under Utkal University, registered
himself as a Dentist and the Registration Certificate as
provided under Section 34 of the Dentists Act, 1948 was
issued in his favour by the Odisha Dental Council on
12.07.2019.
2.2 The Odisha Public Service Commission, vide
Advertisement No. 06 of 2018/19 invited applications
from the prospective candidates through online in the
proforma application to be made available in the website
for recruitment to the post of Dental Surgeon in Group-
'A' (Jr) of Odisha Medical Services (Dental) Cadre for
Scheduled Caste and Scheduled Tribe candidates
(Special Recruitment Drive) under Health & Family
Welfare Department in the scale of pay of Rs.15,600/- -
// 5 //
Rs.39,100/- having Grade Pay of Rs.5400/- with usual
dearness allowance & other allowances, as may be
sanctioned by the Government of Odisha from time to
time. The vacancy position for Scheduled Caste was 22
(07-women) and for Scheduled Tribe was 39 (13-women).
The total vacancies of SC & ST category to be filled up
by the Health & Family Welfare Department in the post
of Dental Surgeon in Group-'A' (Jr) of Odisha Medical
Services (Dental) Cadre was 61 (21-women).
2.3 As per the said advertisement, educational
qualification has been prescribed that the candidate
must have possessed a Bachelors Degree in Dental
Surgery (BDS) or equivalent Degree from a Medical
College or Medical Institution recognized by the Dental
Council of India and must have possessed a registration
certificate under the Dentists Act, 1948 along with other
required qualification prescribed in the advertisement.
The age of a candidate must have been between 21 years
and 32 years as on 1st January, 2018, i.e. he must not
have been born earlier than 2nd January, 1986 and not
// 6 //
later than 1st January, 1997. Age relaxation, as per
Government rules, was also prescribed. The
advertisement also contained other eligibility conditions
of a candidate for the post of Dental Surgeon in Group-
'A' (Jr) of Odisha Medical Service (Dental) Cadre. The last
date for availability of online application was fixed to
11.10.2018. Pursuant to the said advertisement, the
petitioner, having the requisite qualification and
fulfilling the eligibility conditions, applied for the post of
Dental Surgeon in the prescribed proforma along with
the required documents before the last date of
submission of application.
2.4 The Orissa Public Service Commission, vide
notice dated 26.04.2019, allowed the candidature of the
petitioner and admitted him for the written examination
for the post of Dental Surgeon in Group-'A' (Jr) of
Odisha Medical Service (Dental) Cadre for SC & ST
candidates scheduled to be held on 19.05.2019.
Accordingly admit card was issued in favour of the
petitioner indicating his roll number to be 100047 for
// 7 //
appearing in the written examination scheduled to be
held on 19.05.2019. The petitioner appeared in the
written examination and came out successful. After the
written examination was over, 29 selected candidates,
including the petitioner, were directed vide OPSC
notification dated 11.07.2019 for attending the physical
verification of original certificates/ documents in respect
of the educational qualification and eligibility on
25.07.2019 and 26.07.2019 in the office of the Odisha
Public Service Commission. The petitioner appeared
before the Orissa Public Service Commission, along with
all the original documents which were verified. On
12.09.2019, a notice was issued by the Orissa Public
Service Commission informing that the candidature of
the petitioner, as well as some others, had been rejected
by the Commission as they were not eligible, as per the
norms laid down in the advertisement and they were not
fulfilling the requirement of the advertisement for the
selection to the post of Dental Surgeon. In the said
notice against Sl. No.1, 13 roll numbers had been
// 8 //
indicated, including the roll number of the petitioner, i.e.
100047, and as regards the ground of rejection, it was
indicated to have "not completed Housemanship by
11.10.2018, the closing date for submission of online
application." Similarly, the candidature of the petitioners
of the connected writ petition, i.e. W.P.(C) No. 18127 of
2019 had also been rejected on the self same ground.
3. Mr. Rajjeet Roy, learned counsel for the petitioner
in W.P.(C) No. 18119 of 2019 contended that on the
basis of the application submitted by the petitioner,
along with the required documents, if the petitioner had
been called upon to appear in the written examination
and he having qualified in the said examination, called
upon to produce the original documents for verification,
rejection of his candidature on 12.09.2019 alleging that
he was not eligible as per the norms of the
advertisement, is absolutely arbitrary unreasonable and
violative of the principle of natural justice and also hit
by the principle of estoppel. As regards the ground for
rejection that the petitioner had not completed
// 9 //
Housemanship by 11.10.2018, i.e. the closing date for
submission of online application, it is further contended
that by that time the petitioner had already acquired the
qualification and was undergoing Housemanship and
had completed the said course between 06.06.2018 and
05.06.2019. The petitioner's application having found in
order, he was allowed to participate in the process of
selection by appearing in the written examination, and
he having been qualified, subsequently he could not
have been denied the appointment on the plea that he
had not completed the Housemanship by 11.10.2019,
i.e. the last date of submission of application. Fact
remains, by the time the documents were placed for
verification, the petitioner had already acquired the
qualification having completed the Housemanship.
Therefore, he could not have been debarred from
selection on the flimsy ground. Thus, the petitioner
seeks for quashing of the said notification dated
12.09.2019 vide Annexure-8.
// 10 //
3.1 It is further contended that if the candidature
of other candidates had been rejected for some reason or
other before the written examination, the application of
the petitioner should have been rejected at the threshold
without calling upon him to appear in the written
examination. The petitioner, having appeared in the
written examination and qualified in the same,
subsequently at the stage of document verification, his
candidature should not have been rejected on the
ground that he had not completed Housemanship by
11.10.2018, i.e. the closing date for submission of online
application.
3.2 It is further contended that as per NOTE-2 of
Clause-10 of the advertisement, the Degree certificate,
caste certificate, Odia pass certificate, discharge
certificate, Ex-Servicemen and disability certificate of
PWD candidates (indicting % of permanent disability),
which must have been issued by the competent
authority within the last date fixed for receipt of online
applications were to be produced for verification as and
// 11 //
when asked for. But there was no mention about
completion of Housemanship or Medical Registration
Certificate under the Dentists Act, 1948. Though
Clause-10 prescribes the certificates/documents to be
produced for verification as and when asked for and
when the documents were asked for verification, by that
time, the petitioner had already acquired the
Compulsory Housemanship Completion Certificate and,
thereby, his application should not have been rejected
on the ground that the petitioner had not completed
Housemanship by 11.10.2018, i.e. the closing date for
submission of online application. Such action of the
authorities is in violation of the conditions stipulated in
the advertisement itself and, therefore, the same needs
interference by this Court.
3.3 To substantiate his argument, learned
counsel for the petitioner relied upon the decision of the
apex Court in Ashok Kumar Sharma and others Vs.
Chander Shekhar and another, (1997) 4 SCC 18;
The State of Tamil Nadu & Ors Vs. G. Hemalathaa
// 12 //
& Anr, Civil Appeal No. 6669 of 2019 (arising out of SLP
(C) No. 14093 of 2019) disposed of on 28.08.2019; Ram
Kumar Gijroya Vs. Delhi Subordinate Services
Selection Board and another, AIR 2016 SC 1098; and
Mahendra Singh Gill Vs. Chief Election
Commissioner, New Delhi, AIR 1978 SC 851.
4. Mr. J. P. Patnaik, learned Government
Advocate contended that since this matter is relating to
Orissa Public Service Commission, the State has nothing
to say and, as such, no counter has also been filed by
the State.
5. Mr. S.B. Jena, learned counsel appearing for
the Orissa Public Service Commission contended that in
sub-clause (iv) of Clause-9 of the advertisement, it has
been stipulated that admission to examination will be
purely provisional and if on verification at any stage
before or after the examination, it is found that a
candidate does not fulfill any of the eligibility conditions,
his/her candidature will be liable to rejection, and
// 13 //
decision of the Commission in regard to eligibility or
otherwise of candidate shall be final.
5.1 Reliance has also been placed on sub-clause
(xiii) of Clasue-9 of the advertisement, which reiterates
the same condition as has been stipulated in sub-clause
(iv) of Clasue-9. According to him, since the petitioner
had acquired the Housemanship qualification, after the
last date of submission of application form, on
verification of documents he was found ineligible.
Therefore, opposite party no.2 has rejected his
candidature and, as such, no illegality or irregularity
has been committed by the authority in passing the
order impugned vide Annexure-8. Therefore, no
interference of this Court is required. It was further
contended that it is a selection pursuant to the
advertisement issued in the year 2018-19 and the
process of selection has already been concluded.
Thereby, by efflux of time the writ application has
become infructuous and the same should be dismissed.
// 14 //
6. Mr. Debanarayan Patnaik, learned counsel
appearing for the petitioners in W.P.(C) No. 18127 of
2019 argued with the same tone with that of Mr. Rajjeet
Roy, learned counsel for the petitioner in W.P.(C) No.
18119 of 2019.
7. This Court heard Mr. Rajjeet Roy, learned
counsel for the petitioner, Mr. J.P. Patnaik, learned
Government Advocate for opposite party no.1 and Mr.
S.B. Jena, learned counsel for opposite party no.2-the
Orissa Public Service Commission, in W.P.(C) No. 18119
of 2019 by hybrid mode. This Court also heard Mr.
Debanarayan Patnaik, learned counsel for the
petitioners, Mr. J.P. Patnaik, learned Government
Advocate for opposite party no.1 and Mr. P.K. Mohanty,
learned Senior Advocate appearing along with Mr.
Pranay Mohanty, learned counsel for opposite party
no.2-the Orissa Public Service Commission in W.P.(C)
No. 18127 of 2019 by hybrid mode. Perused the record.
Pleadings having been exchanged between the parties
// 15 //
and with their consent, the writ petition is being
disposed of finally at the stage of admission.
8. The Orissa Public Service Commission issued
the advertisement bearing No. 06 of 2018/19 for special
recruitment drive to the post of Dental Surgeon in
Group-'A' (Jr) of Odisha Medical Services (Dental) Cadre
for SC/ST candidates under Health & Family Welfare
Department. It was indicated that online application
form will be available till 11.10.2018 by 11.59 P.M.
Applications were invited online from the prospective
candidates through the proforma application to be made
available on WEBSITE (http://opsconline.gov.in) from
12.9.2018 to 11.10.2018. For a just and proper
adjudication of the case, the relevant clauses of the
advertisement are mentioned below:-
"2. Vacancy Position: As per requisition filed by the Health &
Family Welfare Department of Government of Odisha the
vacancy position are given below:-
Sl. No. Category No of
Vacancies
1. Schedule Caste 22 (07-W)
2. Scheduled Tribe 39 (13-W)
Total 61 (20-W)
// 16 //
3. EDUCATIONAL QUALIFICATION: (i) A candidate must have
possessed a Bachelors Degree in Dental Surgery (BDS) or
equivalent Degree from a Medical College or Medical
Institution recognized by the Dental Council of India (DCI).
(ii) Have possessed a registration certificate under the
Dentists Act-1948.
(iii) Have possessed required Conversion Certificates
recognized by Dental Council of India (DCI) in case of
candidates having Degrees from Universities of Foreign
Countries.
4. AGE: A candidate must not be under 21 (twenty one) years
and must not be above the age of 32 (thirty-two) years as on
1st January, 2018 i.e. he/she must not have been born
earlier than 2nd January 1986 and not later than 1st January
1997. Age relaxation shall be as per government rules
prescribed for the purpose.
8. OTHER ELIGIBILITY CONDITIONS:
(vii) Only those candidates, who possess the requisite
qualification and within the prescribed age limit etc. by the
closing date of receipt of online application, will be
considered eligible;
9. IMPORTANT POINTS:
(iv) Admission to examination will be purely provisional. If on
verification at any stage before or after the examination, it is
found that a candidate does not fulfil any of the eligibility
conditions, his/her candidature will be liable to rejection.
Decision of the Commission in regard to eligibility or
otherwise of candidate shall be final.
(xiii) Admission to examination will be provisional. If on
verification at any stage before or after the examination, it is
found that a candidate does not fulfil any of the eligibility
conditions, his/her candidature will be liable for rejection.
Decision of the Commission in regard to eligibility or
otherwise of candidate shall be final.
10. CERTIFICATES/DOCUMENTS TO BE PRODUCED FOR
VERIFICATION AS AND WHEN ASKED FOR.
// 17 //
Only those candidates, who will be called for the
verification of original certificates & documents, will be
required to bring with them the hard copy of online
application, the original certificates, mark sheets etc. of the
attested copies for verification on the date fixed by the
Commission.
(i) H.S.C. Pass or equivalent Certificate in support of
declaration of age issued by the concerned
Board/Council;
(ii) Intermediate/+2 Sc. Pass Certificate issued by the
concerned University/Council;
(iii) B.D.S. Degree Pass Certificate issued by DCI
recognized Colleges/Institutions;
(iv) Mark-list in support of all the aforesaid examinations
(i.e. from H.S.C. to Bachelor degree in Dental Surgeon)
passed including fail marks, if any, issued by the
concerned Board/Council/University
NOTE: (a) Candidates who have not been awarded
percentage of marks, but only "GRADE MARKS'',
should, along with their applications, produce the
conversion certificate from the concerned
University indicating the actual equivalent
percentage of marks and the conversion formula,
failing which, their applications are liable to be
rejected.
(b) While filling up the relevant box of the online
application form, the candidate has to mention
details of the marks secured (excepting m arks
secured in the Extra Optional/4th Optional
Subject) in each semester/examination passed
(i.e. H.S.C. to B.D.S. Degree)
(v) Compulsory Houseman-ship Completion Certificate;
(vi) Medical Registration Certificate under the Dentist Act,
1948;
(vii) Required Conversion Certificates recognized by Dental
Council of India (DCI) in case of candidates having
Degrees from Universities of Foreign Countries;
// 18 //
(viii) A "No Objection Certificate" from the Head of
Office/Head of the Department in case of Government
Servant;
(ix) Attach two recent passport size photographs
(unsigned & unattested), with the printout/hard copy
of online application form which has been uploaded;
(x) Certificates of character and conduct from the
Principal/Proctor/Dean or Professor in charge of
Teaching Department of the College or University in
which he/she last studied;
(xi) Caste Certificate by birth in support of claim as
S.C./S.T, wherever applicable (Please see Note- I);
Concession meant for S.C./S.T. are admissible to
Scheduled Castes/Scheduled Tribes of Odisha only;
(xii) Odia Pass Certificate from the competent authority as
required under para -8 (iii) of the advertisement;
(xiii) Discharge Certificates of Ex-Serviceman issued by the
Commanding Officer of the Unit last served wherever
applicable;
Ex-servicemen must submit an Affidavit that he
has not been appointed against any civil post after
retirement from military service.
(xiv) Disability Certificate (indicating percentage of
permanent disability) issued by the concerned Medical
Board, wherever applicable;
(xv) If a candidate claims to possess qualification,
equivalent to the prescribed qualification, the
rule/authority (With number and date) under which it
is so treated, must be furnished with the Application
Form;
(xvi) Certificate from competent authority in support of past
service as in service doctors under Government of
Odisha in respect of candidates who claim age
relaxation as serving Doctors. The period o[past
service as Medical Officer will be taken into account by
the Closing date o[receipt o[online applications:
// 19 //
(xvii) Candidates claimed to be Sports persons are required
to submit Identity Card issued by the Director of
Sports, Odisha, wherever applicable;
NOTE-I Candidates claiming to be belonging to
S.C./S.T./S.E.B.C. category by birth are required to
submit copy of the relevant Caste Certificate issued by
the competent authority in the prescribed form.
(i) Women candidates belonging to S.C./S.T. category
are required to submit Caste Certificates by birth
showing "daughter of ........................... ". Caste
Certificates by virtue of marriage (i.e. showing "wife of
...................... ") are not acceptable.
(ii) Community (Caste status) once mentioned by the
candidates shall not be changed under any
circumstances.
The competent authorities to issue Caste Certificates
are: - District Magistrate/ Collector or Additional
District Magistrate or Sub-divisional Magistrate/Sub-
Collectors or Executive Magistrates or Revenue
Officers, not below the rank of Tahasildar/Additional
Tahasildar of Government of Odisha;
NOTE-2 Degree certificate, caste certificate, odia test
pass certificate, discharge certificate of Ex-Servicemen
and disability certificate of PWD candidates (indicating
% of permanent disability) must have been issued by
the competent authority within the last date fixed for
receipt of online applications.
CLOSING DATES
ON LINE APPLICATIONS WILL BE AVAILABLE TILL
11.10.2018 11.59 P.M."
9. The petitioner, having possessed the requisite
qualification as prescribed in Clasue-3 and having come
within the age limit prescribed under Clasue-4 and
// 20 //
satisfied other eligibility conditions as per Clause-8,
applied for the post of Dental Surgeon in Group- 'A' (Jr)
of Odisha Medical Services (Dental) Cadre, in the
prescribed proforma available in the website. On
consideration of the application and documents filed by
the petitioner, he had been noticed to appear the written
test by issuing necessary admit card in his favour vide
Annexure-6. Accordingly, the petitioner appeared the
written examination held on 19.05.2019 and came out
successful. Thereafter, he had been called upon on
11.07.2019 to come with the hard copy of the online
application, filled in "attestation form and bio-data form"
(to be downloaded from the website of the commission)
along with the original and photocopies of all
certificates/ documents (as mentioned in Para-10 of the
advertisement) and photograph as uploaded and to
produce the same in person on the date and time of
verification. In compliance to the same, the petitioner
appeared along with all documents, as mentioned in
clause-10 of the advertisement, including Compulsory
// 21 //
Housemanship Completion Certificate and Medical
Registration Certificate under the Dentist Act, 1948. The
documents were verified duly by the authorities, but,
vide notice dated 12.09.2019 under Annexure-8, the
candidature of 13 candidates, including the petitioner,
has been rejected on the plea that they have not
completed Housemanship by 11.10.2018, the closing
date for submission of online application. As it reveals
from the advertisement, the same was not the condition
precedent to make an application for appearing the
written test, rather, Clause-3 of the advertisement is
more specific that the candidate must have possessed
the requisite qualification as prescribed therein. The last
date of submission of application being 11.10.2018, the
provisional certificate issued by the Utkal University
clearly indicates that the petitioner had passed the final
B.D.S. Examination by March, 2018 from Hi-Tech
Dental College & Hospital, Bhubaneswar having Roll
No.4013H060 and by the last date of submission of
application he was undergoing compulsory Rotating
// 22 //
Housemanship for 12 months, which he completed on
05.06.2019, admittedly after the last date of submission
of application. Since the petitioner possessed the
Bachelors Degree in Dental Surgery (BDS) by March,
2018, he submitted his application. His application was
processed and he was allowed to appear in the written
examination, where he qualified. When he was called
upon for certificate and document verification in terms
of Clause-10 of the advertisement, he produced all such
documents as mentioned in Sub Clauses- (i) to (xvii) of
Clause-10 and from such documents, it was found that
he has not completed Compulsory Housemanship
Certificate by the last date of submission of application
and accordingly his candidature was rejected. This
action itself is arbitrary, unreasonable and contrary to
the provisions of law. If a candidate was allowed to sit in
the examination and qualified in the written
examination, as per Clause-10 of the advertisement, he
was to only produce the documents for verification,
which he adhered to, and if by that time he possessed
// 23 //
all the required documents, on a flimsy ground his
candidature could not have been rejected. Therefore, the
action so taken by opposite party no.2 in Annexure-8
dated 12.09.2019 debarring the petitioner from
recruiting to the post of Dental Surgeon cannot sustain.
10. In the counter affidavit filed by opposite party
no.2, in paragraphas-6 and 7 it has been indicated as
follows.
"6. That, basing on the information submitted by the
candidates in their online application, applications of 06
(02-w) candidates were rejected by the Commission on the
ground of "Odia Test not passed" and 47 (26-w) of
candidates including the petitioner were provisionally
allowed to appear at the written examination which was
held on 19.05.2019. After the written examination, 29 (19-
w) of candidates including the petitioner were qualified in
the said written examination and called for verification of
original certificates/ documents vide OPSC Office Notice No.
4485/PSC, dt 11.07.2019 which was scheduled to be held
on 25.07.2019 & 26.07.2019. All the 29 (19-w) candidates
including the petitioner had attended the same. During the
course of verification, it was noticed that 13 candidates
including the petitioner Dr. Varsachala Chetan had no
"required qualification" as on the last date of submission of
online application form. On verification, it is found that the
petitioner had completed Housemanship on 05.06.2019
which was after the last date of submission of online
application form and thus, treated ineligible for selection to
the said post. Accordingly, the Commission had rejected the
candidature of those 13 candidates on the ground of not
completed Housemanship by 11.10.2018, i.e. the closing
date of submission of online application vide OPSC Office
Notice No. 5857/PSC, dt. 12.09.2019 (Annexure-8 of the
writ petition).
// 24 //
7. That it is pertinent to mention here that, the Hon'ble
Apex Court of India in their decision dt. 28.08.2019, passed
in Civil Appeal No. 6669 of 2019 (Arising out of SLP (C) No.
14093 of 2019) have directed that the instructions given by
the Public Service Commission are mandatory having the
force of law and they have to strictly complied with. Strict
adherence to the terms and conditions of the instructions is
of paramount importance. The High Court in exercise of
powers under Article 226 of the Constitution of India cannot
relax/modify the instructions issued by the Commission. In
view of the aforesaid decision of the Hon'ble Apex Court, the
writ petition may not be entertained and is liable to be
dismissed. A copy of the judgment of the Hon'ble Apex
Court is annexed herewith as Annexure-A/1. Hence the
Commission have done nothing wrong and illegal in
rejecting the candidature of the Petitioner as per terms and
conditions of the Advertisement."
11. From the aforesaid pleadings available on
record, it is made clear that candidature of 06 (02-W)
candidates, who had submitted their applications
through online, having not satisfied the requirement in
terms of the advertisement, was rejected by the
Commission. Therefore, if the petitioner had not
satisfied the requirement of the advertisement, having
no requisite qualification, he should not have been
called upon to appear the examination. Once the
petitioner was called upon and allowed to appear in the
examination, subsequent rejection of his candidature at
// 25 //
the stage of document verification, is absolutely
misconceived one. More so, under NOTE-2 of Clause-10
of the advertisement, the required certificates/
documents to be produced, such as degree certificate,
caste certificate, odia pass certificate, discharge
certificate, Ex-servicemen and disability certificate of
PWD candidates (indicating % of permanent disability)
must have been issued by the competent authority
within the last date fixed for receipt of online
applications. Undoubtedly, it is one of the mandatory
requirements prescribed in the advertisement that these
documents are to be filed within the last date fixed for
receipt of online application. But there was no mention
with regard to production of Compulsory Housemanship
Completion Certificate and Medical Registration
Certificate under the Dentist Act, 1948. Thereby, these
documents may be required for verification of
documents as per the advertisement, but not
mandatorily required to be obtained before the last date
of submission of online application. If that be so,
// 26 //
opposite party no.2 could not have rejected the
application on the ground that the petitioner does not
possess the compulsory Housemanship Completion
Certificate and Medical Registration Certificate under
the Dentist Act, 1948 before the last date of submission
of application, which is not required under NOTE-2 of
Clause-10 of the advertisement. Thereby opposite party
no.2 is estopped from taking such a plea and as such,
the same is hit by principle of estoppel.
12. Section-115 of the Indian Evidence Act, 1872
deals with Estoppel, which reads as follows:-
"115. Estoppel:- When one person has, by this declaration,
act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such
belief, neither he nor his representative shall be allowed, in
any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing."
To bring the case within the scope of estoppel as defined in
Section 115 of the Evidence Act;
1. There must be a representation by a person or his
authorized agent to another in any form, a declaration,
act or omission;
2. The representation must have been of the existence of a
fact and not of promises be future or intention which
might or might not be enforceable in contract;
3. The representation must have been meant to be relied
upon;
4. There must have been belief on the part of the other
party in its truth;
5. There must have been action on the faith of that
declaration, act or omission that is to say, the
// 27 //
declaration, act or omission must have actually caused
another to act on the faith of it, and to alter his former
position to this prejudice or detriment;
6. The misrepresentation or conduct or omission must have
been the proximate cause of leading the other party to
act to his prejudice;
7. The person claiming the benefit of an estoppel must show
that he was not aware of the true state of things. If he
was aware of the real state of affairs or had means of
knowledge, there can be no estoppel;
8. Only the person to whom representation was made or
for whom it was designed can avail himself of it."
13. Similar question had come up before this
Court in the case of Suresh Chandra Choudhury v.
The Berhampur University and others, AIR 1987
Orissa 38. In paragraph-6, this Court held as follows:-
"6. As noticed earlier, the petitioner was not entitled to be
declared as 'passed' in view of the provisions under
Regulation 19 of the Berhampur University Regulations
requiring the candidate to secure minimum 40 per cent marks
in practical examination to pass in that subject. Therefore,
the declaration that the petitioner passed in the examination
was clearly erroneous. The petitioner could not have been
misled by the representation of the University authorities
since the mark sheet sent to the College admittedly showed
that he failed to secure the minimum requisite percentage in
the Physics practical examination. Directing the University to
comply with its declaration would be compelling the authority
to act against the statute. On the aforesaid analysis, I am
unable to persuade myself to accept the contention of the
learned counsel for the petitioner that the action of the
authorities declaring the petitioner to have failed in the
examination is hit by the rule of estoppel.
14. Applicability of principle of estoppel has been
dealt by the apex Court in the case of Chhaganlal
Keshavlal Mehta v. Patel Narandas Haribhai, AIR
// 28 //
1982 SC 121 and while doing so, the apex Court
observed that it is also a well-known principle that there
can be no estoppel against a statute.
15. In Black's Law Dictionary, 7th Edn. at page
570, 'estoppel' has been defined to mean a bar that
prevents one from asserting a claim or right that
contradicts what one has said or done before or what
has been legally established as true.
16. In B.L. Sreedhar v. K.M. Munireddy, (2013)
2 SCC 355 (365), it has been held by the apex Court
that 'estoppel' is based on the maxim allegans contrarir
non est audiendus (a party is not to be heard contrary)
and is the spicy of presumption juries et de jure
(absolute, or conclusive or irrebuttable presumption).
17. In the case of H.R. Basavaraj v. Canara
Bank, (2010) 12 SCC 458, the apex Court while dealing
with the general word, 'estoppel' stated that 'estoppel is a
principle applicable when one person induces another or
intentionally causes the other person to believe
// 29 //
something to be true and to act upon such belief as to
change his/ her position. In such a case, the former
shall be estopped from going back on the word given.
The principle of estoppel is only applicable in cases
where the other party has changed his positions relying
upon the representation thereby made.
18. Similar view has also been taken by this
Court in the case of M/s. Balasore Alloys Ltd. & Anr.
Vs. State of Odisha & Ors, 2019 (I) ILR-CUT-214.
19. In Ashok Kumar Sharma (supra), it has
been observed that an advertisement or notification
issued/published calling for applications constitutes a
representation to the public and the authority issuing it
is bound by such representation. It cannot act contrary
to it.
Therefore, if the advertisement does not
stipulate such condition, indicating as the ground for
rejection, opposite party no.2 cannot act contrary to the
condition stipulated in the advertisement, and, thereby,
// 30 //
the entire action taken by the Orissa Public Service
Commission rejecting the candidature of the petitioner
cannot sustain in the eye of law.
20. In G. Hemalathaa (supra), in paragraph-7, it
has been observed by the apex Court that the
instructions issued by the Commission are mandatory,
having the force of law and they have to be strictly
complied with. Strict adherence to the terms and
conditions of the instructions is of paramount
importance.
21. It is of relevance to note that, the petitioner
has not violated any of the conditions and instructions
issued by the Orissa Public Service Commission, which
is mandatory. Though it was stated that the candidates
were allowed provisionally, mere mentioning of the word
'provisional' cannot debar the petitioner from satisfying
the requirement of conditions stipulated in the
advertisement itself. If the petitioner has satisfied the
requirement issued in the advertisement and by the time
// 31 //
of verification of the documents, the petitioner had
possessed the required documents, in that case,
rejection of his candidature on the ground that he does
not possess the minimum qualification as on the last
date of submission of application, cannot sustain in the
eye of law.
22. In Mahendra Singh Gill Vs. Chief Election
Commission, New Delhi, AIR 1978 SC 851 the apex
Court held that when a statutory functionary made an
order based on certain ground, its validity must be
judged by the reasons so mentioned and not be
supplemented by a fresh reason in shape of affidavit or
otherwise.
23. In Ram Kumar Gijroya Vs. Delhi
Subordinate Services Selection Board and another,
AIR 2016 SC 1098, the apex Court at paragraph-9
quoted the settled law to the extent that the State is
meant to be a model employer and must give due
importance to the fundamental rights of equality and
// 32 //
opportunity in the matter of public appointment
guaranteed under Article 14 and 16 of the Constitution of
India. The Apex Court, however held that candidates
submitting caste certificate after cut off date mentioned in
advertisement cannot be held ineligible for selection to the
post.
24. Considering the factual and legal matrix
discussed above, this Court is of the considered view
that rejection of the candidature of the petitioners both
in W.P.(C) No. 18119 of 2019 and W.P.(C) No. 18127 of
2019, vide notice dated 12.09.2019, on the ground of
non-completion of Housemanship by 11.10.2018, i.e.,
the closing date for submission of online application,
cannot sustain in the eye of law and the same is liable to
be quashed and hereby quashed.
25. Consequently, this Court directs opposite
party no. 2-Odisha Public Service Commission to call
upon the petitioners in both the writ petitions to appear
at the interview to be conducted by constituting a
// 33 //
special selection committee for the purpose of
recommendation for recruitment to the post of Dental
Surgeon in Group-'A' (Jr.) of Odisha Medical Service
(Dental) cadre for SC & ST candidates under Health and
Family Welfare Department pursuant to the
advertisement No. 06 of 2018/19. The entire exercise
shall be completed within a period of three months from
the date of communication of this judgment.
26. Both the writ petitions are accordingly
allowed. No orders as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 18th November, 2021, Arun
