Rajat Kumar Mishra And Others vs State Of Odisha And Others
2022 Latest Caselaw 7047 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.32174 of 2022

                 Rajat Kumar Mishra and others         ....        Petitioners

                                        Mr. Manoj Kumar Mishra, Sr. Advocate
                                            -versus-
                 State of Odisha and others          ....    Opposite Parties

                                            Mr. Ashok Kumar Parija, learned
                                                 Advocate General of Odisha

                                          Mr. P.K. Mohanty, Sr. Advocate for
                                                                     OPSC
                                        CORAM:
                            JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 02.12.2022
    02.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard Mr. Manoj Kumar Mishra, learned senior counsel appearing for the petitioners, Mr. Ashok Kumar Parija, learned Advocate General of Odisha for the State-Opposite Parties and Mr. P.K. Mohanty, learned senior counsel appearing for the Odisha Public Service Commission (in short and hereinafter referred to as 'OPSC').

3. The present writ petition has been filed by the petitioners questioning the method of selection process adopted by the OPSC while conducting the recruitment examination for appointment to the post of Assistant Section Officers (ASO) in Group-B of Odisha Secretariat Service under the Home Department, Government of // 2 //

Odisha.

4. The main plank of challenge of Mr. Mishra, learned senior counsel appearing for the petitioners is that the OPSC does not have authority to fix subject wise cut-off marks other than as provided in the Rules. After the selection process was commenced by taking resort to Clause-(6)(c) of the Rules, wherein it has been provided that the Commission shall be competent to publish the qualifying marks in any advertisement.

5. Mr. Mohanty, learned senior counsel appearing for the OPSC submits that the OPSC subsequently adopted the mechanism by imposing cut-off mark on each subject when there is no rule in the advertisement published vide Advertise No.26 of 2021-2022.

6. The Rule i.e. relevant for the purpose of the present case is Rule-6 of the Odisha Secretariat Service (Method of Recruitment) and Condition of Service of Assistant Section Officer Rules, 2016, which has been enacted by exercising power under proviso to Article 309 of the Constitution of India. Part-II of the Rules provides the method for selecting candidates for recruitment. Para-2 of the Rules provides method of recruitment adopted while selecting candidates for the appointment to the post of ASO of the Orissa Secretariat. Rule-4(a)(i) provides that selection procedure shall be done in a competitive examination to be held at least once in a year in accordance with Rule-6.

7. Rule-6 which deals with direct recruitment provides basically two stages for selection and recruitment of the candidates to the post of ASO. Rule-6(5) provides that the scheme of such subjects for the written examination shall be as specified in the schedule i.e. 1st stage of selection.

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8. For second stage of selection, Rule-6(6) provides only those candidates, who have been short listed after the written examination, shall be called for skill test in computer as provided in the schedule, which shall be of qualifying in nature. One should secure at least 40% of the total marks in the skill test to qualify. Therefore, Mr. Mishra, learned senior counsel appearing for the petitioners argued that in the present the thrust of his attack would be confined to interpretation of Rule-6(5) of 2016 Rules, which provides that scheme and the subject in written examination and syllabus is specified in the schedule appended to the Rules. On a bare perusal, it does not disclose that any qualifying mark (subject wise) has been provided therein. It only provides that the total marks after each category of examination (Total four categories) under which the examination is to be held and the duration of such examination. Therefore, there is no mention about any qualifying marks to be obtained by the candidates by taking the written examination to be conducted by OPSC as per the Rules.

9. In view of the above, Mr. Mishra, learned senior counsel for the petitioners submits that the OPSC has exceeded its jurisdiction and in the process, it has not followed the 2016 Rules diligently and scrupulously while conducting the examination. It is also submitted that the OPSC at a later stage of examination has developed and adopted a new mechanism and as such included subject wise minimum qualifying marks for the examination, which is not there in the relevant Rule as well as in the schedule appended to the Rules. Accordingly, Mr. Mishra, learned senior counsel for the petitioners challenge the further continuance of the selection process, which is going on at the moment under the control and supervision of Odisha // 4 //

Public Service Commission.

10. Mr. Mohanty, learned senior counsel appearing for the OPSC, per contra, submits that the Rules confer ample power and authority on the OPSC, a constitutional body in view of the Article 320 of the Constitution of India to conduct any examination. Therefore, the conduct of the Odisha Public Service Commission in providing cut- off mark in each subject at a later stage is well within their scope and jurisdiction. In the said context, he also refers to Rule 6 Sub-rule(5) of the 2016 Rules.

11. Mr. Mohanty, learned senior counsel for the OPSC, furthermore, refers to the advertisement published by the OPSC under Annexure-1 i.e. Advertisement No.26 of 2021-2022 and draws attention of this Court towards Clause-6(6) under the Heading of Method of Selection and submitted that by virtue of advertisement, the Commission has Power and competence to fix up qualifying marks for candidates in the written examination. In such view of the matter, Mr. Mohanty, learned senior counsel appearing for the OPSC submits that justification of imposing qualifying marks in respect of each subject for the ASO examination. Further, he submits that the candidates having appeared in the selection test and estoppels to selection process of the advertisement. Therefore, he also submits that the writ petition at their instance is not maintainable.

12. Mr. Ashok Kumar Parija, learned Advocate General of Odisha appearing for the State-Opposite Parties submitted that a large number of candidates i.e. almost one lakh fifty thousand candidates to appear in the first stage of the examination i.e. written examination as per Rule 6(5). Therefore, the OPSC short listed the candidates. Accordingly, the OPSC device the mechanism to short // 5 //

list the candidates in a fair and transparent manner and to pick the best candidates from among the lot. He further contended that the OPSC has ample power under the Rules to device the sole mechanism while conducting the written examination and further referring to the advertisement issued by the OPSC, learned Advocate General further submits that the OPSC has not committed any wrong while imposing cut-off mark. It is further contended by learned Advocate General that since final mark has not been published yet, the stage to challenge the merit list has not come to the said context part. Further, learned A.G. submits that once candidates know about the final mark, only he can approach this Court for redressal of their grievances or protection of their rights. In view of the aforesaid fact, learned A.G. also submits that the writ petition is not maintainable at this stage.

13. In reply to the submissions made by learned senior counsels appearing for the State as well as the OPSC, Mr. Mishra, leaned senior counsel for the petitioners relies upon the judgment of Hon'ble Supreme Court reported in (2022) 8 SCC 713 (Krishna Rai (Dead) through Legal Representatives and others vrs. Banaras Hindu University through Registrar and others). Referring to the contentions of Mr. Mohanty, learned senior counsel for the OPSC submits that having participated in the selection process, it is not more open to the candidates to question the process and selection and terms and conditions contained therein. Relied upon the Hon'ble Supreme Court judgment, Mr. Mishra, submits that there is no estoppels. Therefore, such plea cannot be taken by learned senior counsel appearing for the OPSC at all for the test of the present matter next. Mr. Mishra relied upon the judgment of the Hon'ble Supreme Court in the case of the Goa Public Service Commission // 6 //

vrs. Pankaj Rane and others (2022 SCC Online SC 440) to support his contention where the minimum qualifying marks in the oral interview was not prescribed in the relevant Rules for examining body i.e. Goa Public Service Commission device the mechanism and adopted a minimum qualifying mark to short list the candidates in the via voce test. The same was challenged before the High Court. The High Court allowed the writ petition by holding that such a procedure is not purview under the Rules. Finally, the matter was decided by the Hon'ble Supreme Court detailed the judgment as affirmed the judgment of the High Court.

14. The moot question that is required to be adjudicated in the present case is whether the OPSC was within its scope and jurisdiction while introducing cut-off marks for different subject, which is not specifically prescribed in the relevant Rule 2016 and further by introducing such a mechanism, they have also deviate the practice followed previous years and whether the introduction of such subject wise cut-off mark is permissible in view of the provision in Rule-6(5) as no such cut-off mark has been prescribed as schedule as appended in the rules.

15. In such view of the matter, this Court is of the considered view that this matter needs proper adjudication after filing counter affidavit by the contesting opposite parties. Accordingly, issue notice to the opposite parties. Learned counsel for the petitioner is directed to serve adequate number of extra copies of the brief on the opposite parties within three working days. The opposite parties are directed to file their counter affidavits within a period of ten days after serving a copy thereof on learned counsel for the petitioner, who shall file rejoinder, if any, within three days.

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16. List this matter on 20th of December, 2022 at 2.00 P.M.

A free copy of this order be handed over to Mr. P.K. Mohanty, learned senior counsel appearing for the OPSC for communication and compliance.

                                                   ( A.K. Mohapatra )
                                                          Judge
                                     I.A. No.16237 of 2022
   03.       17.     Heard.
             18.     Issue notice as above.

19. As an interim measure, it is directed that the process of selection for the post of ASO may continue as per schedule, however, no final merit list shall be published/notified till the next date.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra ) Judge Jagabandhu