Orissa High Court

Pradeep Kumar Nayak & Ors vs State Of Odisha And Ors on 11 August, 2022

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P.(C) No.18937 of 2022

(In the matter of application under Articles 226 and 227 of the
Constitution of India, 1950).

 Pradeep Kumar Nayak & Ors.               ....        Petitioners
                              -versus-
 State of Odisha and Ors.                 ....         Opp. Parties

 Advocates appeared in the case through Hybrid Mode:
 For Petitioners           :     Mr. Durgesh Narayan Rath, Adv.
                            -versus-

 For Opp. Parties            :           Mr. Ashok Ku. Parija, AG
                                          Mr. Arnab Behera, ASC


             CORAM:
             DR. JUSTICE S.K. PANIGRAHI

               DATE OF HEARING:-02.08.2022
              DATE OF JUDGMENT:-11.08.2022

    Dr. S.K. Panigrahi, J.

1. The matter is taken up through hybrid mode.

2. The present petition has been filed challenging the Resolution

dated 14.12.2021 issued by the opposite party No.1 and the

consequential advertisement dated 23.12.2021 issued by the

Director, Secondary Education, Bhubaneswar. The petitioners

challenge the entire selection process since the same is

contrary to the rules and guidelines governing the said

selection process.

3. Shorn of unnecessary details, the substratum of matter

presented before this Court remain that pursuant to

advertisement dated 13.08.2021, the Opposite Party No.2

invited online applications for recruitment to the posts of

contractual teachers against existing vacancies of Hindi,

Sanskrit and Physical Education Teacher posts in Government

Secondary schools. The selection for the above-mentioned

posts was to be made through Computer Based Test (CBT) in

selected test centers in Odisha.

4. The petitioners averred that there was no pass mark fixed for

the unreserved or reserved candidates and the appropriate

committee constituted by the Government reserved the right

to declare the cut off mark in the CBT for short listing.

Pursuant to the advertisement dated 23.12.2021, the Opposite

Parties included a clause in the eligibility criteria that B. Ed

from a NCTE recognized institution shall also serve as a

requisite qualification for recruitment to the post of

Contractual Hindi Teachers. It is pertinent to mention that the

petitioners appeared for the CBT in the concerned subject but

were unable to qualify and hence they were out of the purview

of the final selection.

5. Learned counsel for the petitioners further submitted that the

clause- B.Ed from a NCTE recognized institution was not

available in the Resolution dated 17.01.2014 which dealt with

recruitment of teachers in Government Secondary Schools

whereas the same was a part of the eligibility criteria in the

advertisement dated 23.12.2021.

6. Learned Counsel for the State submits that from the bare

perusal of the clause- B.Ed from a NCTE recognized institution

only means that if a candidate with the required training

qualification has the desired/prescribed academic proficiency

in the Hindi subject, then such candidate could be shortlisted

for further stages of the selection process. The clause in the

advertisement cannot be interpreted to mean that merely

because a candidate may have had the requisite training

experience and possessed the essential eligibility, he would

develop a preferential right to be considered for appointment

ahead of candidates with training qualification in the

concerned subject.

7. He further submits that the shortlisting of the candidates

depends upon the marks secured in the CBT and other

eligibility conditions in the advertisement dated 23.12.2021.

The change in policy with regards to the eligibility criteria is a

conscious consideration on the part of the appointing

authority and such change cannot be condemned on the

grounds of arbitrariness and illegal discrimination.

8. Heard the parties. The issue raised by the petitioners

regarding addition of change in policy in so far as including

the B.Ed from a NCTE recognized institution only means that if a

candidate with the required training qualification has the

desired/prescribed academic proficiency in the Hindi subject,

then such candidate could be shortlisted for further stages of

the selection process. This is a conscious decision by the

Opposite parties to include such NCT recognized candidates

and cannot be said to be illegal or discriminatory.

9. The another limb of argument advanced by the learned

counsel for the petitioners with respect to the issue of fixation

of no pass mark for the unreserved or reserved candidates

and the appropriate committee constituted by the Government

reserved the right to declare the cut off mark in the CBT for

short listing. This is the prerogative of the selection committee

which is in charge of the selection process, which cannot

unnecessarily be interfered by this Court. In fact, such issues

have been succinctly been dealt by the Supreme Court on

several such instances and the view of non-interference by the

court is still dominantly prevalent.

10. In the case of Maharashtra Public Service Commission v.

Sandeep Shriram Warade1, the Supreme Court observed:

"The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to

CIVIL APPEAL NO(s). 4597 OF 2019

decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."

11. The Apex Court in the case of Maharashtra State Board of

Secondary and Higher Secondary Education v. Paritosh

Bhupeshkumar Sheth and others2observed hereasunder:

"The Court should be extremely reluctant to substitute its own views as to what is wise prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the

1984 AIR 154

problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded."

12. When a large number of candidates are available having the

basic qualifications prescribed for competing for appointment

to a particular post or class of posts and where the available

posts are limited, necessarily, the State, therefore, is compelled

to make a further assessment of the relative merits of all the

competing candidates by some legally permissible method.

Competitive examination such as the one conducted in the

present case is one such method. The conduct of the

competitive examination by definition is a process of filtering

or eliminating the less suitable candidates though they possess

the basic qualification prescribed by the State in the context of

a given post/class of posts. Such filtering process can take

various forms depending upon the nature of the posts sought

to be filled up and the mode of filtering may vary from time to

time and also from class to class of the posts sought to be filled

up.

13. The Supreme Court clarified a decision of the Punjab &

Haryana High Court in Rameshwar Nath Moudgil v. State of

Punjab3, wherein it was apparently held otherwise. The facts of

W.P (C) 1464 of 1976

the said case were that the eligibility criteria to the post in

question were altered retrospectively during the pendency of

the process of selection. Such alteration jeopardizes the chances

of Rameshwar Nath. The Punjab & Haryana High Court held

that such a retrospective alteration would violate the

provisions of Article 16 of the Constitution of India. The

Supreme Court observed hereunder:

"......the authority which has the power to specify the method of recruitment must be deemed to have the power to revise and substitute the same in the same manner...such an inherent power exists in the authority to alter, vary, change or replace its creation."

14. In the case of Jai Singh Dalal and Ors. vs State of Haryana

and Anr.4, the Supreme Court iterated that:

"There is no prohibition in law preventing the State from altering the process of selection in the midstream as long as such an alteration did not render any one of the otherwise eligible candidates ineligible to participate in the selection process. All that the alteration in question sought to achieve is to enable some more candidates also to participate in the selection process. The power to make such alteration is within the power of the State."

15. In the present case, the petitioners couldn't qualify the CBT

and hence, were not considered eligible to advance into further

stages of the recruitment process. It is a settled position of law

1993 Supp (2) SCC 600

that the unsuccessful candidates cannot turn back and assail

the selection process. The petitioners took a calculated chance

and appeared for the CBT and only because the result of the

CBT was not palatable to them, they cannot turn around and

challenge the recruitment process.

16. The petitioners participated in recruitment process conforming

to the eligibility criteria provided in the advertisement dated

23.12.2021. Even though the petitioners were aggrieved by the

inclusion of an additional condition in the eligibility criteria,

they did not espouse their remedy. Instead, they participated

in the recruitment process and it was only upon being

unsuccessful that they challenged the inclusion of the

concerned eligibility criteria in the writ petition. This was

clearly not open to the petitioners. The principle of estoppel

would operate against the present petitioner.

17. The law on the subject has been crystalized in several

decisions of the Supreme Court. In Chandra Prakash Tiwari v.

Shakuntala Shukla5, the Supreme Court laid down the

principle that:

"....when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and

Appeal (civil) 3441-3446 of 2002

participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable."

18. In the case of Pradeep Kumar Rai v. Dinesh Kumar Pandey6,

the Supreme Court held that :

"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."

19. In the case of Ramesh Chandra Shah & Ors vs Anil Joshi7, the

Supreme Court observed:

"In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board

CIVIL APPEAL NO.6549 OF 2014

CIVIL APPEAL NOS. 2802-2804 OF 2013

for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."

20. In the present case, there was a gap of almost two months

between the CBT and publication of draft merit list. If the

petitioners had cleared the CBT, they would not have raised

any question or objection to the recruitment process or the

methodology adopted by the Opposite Party. In other words,

they took a chance to be selected in the CBT conducted by the

Opposite Party on the basis of the advertisement dated

23.12.2021. This conduct of the petitioners clearly disentitles

them from seeking relief under Article 226 of the Constitution.

To put it differently, by having appeared in the written test and

taken a chance to be declared successful, the petitioners will be

deemed to have waived their right to challenge the

advertisement and the procedure of selection.

21. Much has been argued by the petitioners with reference to cut-

off marks. According to them, the non-fixation of the minimum

pass mark in the CBT shows malafide intention of the

authorities. This court found absolutely no merit in this

argument. In the instant case, it was clarified vide Paragraph

9(b) of advertisement dated 23.12.2021 that the appropriate

committee constituted by the Government reserve the right to

declare the cut off mark in the CBT for short listing. This court

is of the opinion that the Appointing Authority is placed in a

better position to ascertain the eligibility of the candidates and

it has every justification to suggest or set priorities in fixation

of minimum qualifying marks/cutoff in order to filter out the

deserving candidates for next phase of the recruitment process.

22. Normally, rules following which the selection has commenced

cannot be changed/altered but nothing prevents the appointing

authority to take measures for screening of candidates, if

candidates in numbers apply for employment and the need to

restrict the zone of consideration is felt. Similarly, bench marks

or cut-off marks for appointment could be set without

prejudicing the right of any candidate, not based on

considerations that are extraneous but based on reasonable and

bona fide intention.

23. In the case of Yogesh Devidas Patil & Ors v. Union of India &

Anr8, the High Court of Bombay observed:

"....Although the panels were not prepared according to merit which, we reiterate, the Central Railway ought to have prepared, the marks obtained by the petitioners have been found to be well below the cut-off marks. The cut-off marks have been determined based on the marks obtained by the last appointed candidate in each category. It is the stage when a meandering game is brought to a halt. It is part of the selection process. If the game is halted because of reasons that are free from doubt or suspicion, one cannot really complain and question why the game has been halted. It is only when the game is halted by

W.P (C) 7830 of 2017

extraneous consideration and there is good reason to suspect that the action is neither reasonable nor bona fide that scrutiny by the Court would be justified. It being axiomatic that offering appointment to any of the candidates who secured marks less than the last appointed candidate in each category would be illegal, the argument appears to us to have been made in desperation."

24. The selection made by an authority for appointment is not

ordinarily open to judicial scrutiny because whether a

candidate is fit for a particular post or not, has to be decided

by the duly constituted Appointing Authority/Selection

Committee which has the expertise on the subject. Since it

lacks the expertise, it is not the function of the Court to hear

appeals over the decisions of Selection Committees and to

scrutinize the relative merits of candidates.

25. If a candidate despite being aware of any defect or infirmity in

a process of selection appears at the examination for

recruitment/interview by taking a calculated chance, and finds

the result of such examination/interview not palatable to him,