Orissa High Court
Arun Kumar Shasani vs State Of Orissa And Others on 5 May, 2022
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 10389 OF 2013
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR
Arun Kumar Shasani ..... Petitioner
-Versus-
State of Orissa and others ..... Opp. Parties
For Petitioner : M/s. S. D. Routray,
P.K. Sahoo, S. Das and
S. Jena, Advocates.
For Opp. Parties : Mr. S.N. Nayak,
Addl. Standing Counsel
(O.Ps.1 & 3)
Mr. Sanjib Swain, Advocate
(O.P.2)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HON'BLE MISS JUSTICE SAVITRI RATHO
Date of hearing & judgment : 05.05.2022
DR. B.R. SARANGI, J. The petitioner, by means of this writ,
seeks to quash the order dated 09.11.2012 passed by the
Orissa Administrative Tribunal, Cuttack Bench, Cuttack
in O.A. No. 334 (C) of 2012, and to issue direction to the
opposite parties to give him appointment in the post of
Junior Assistant under unreserved Physically
Handicapped category.
2. The factual matrix of the case, in brief, is that
Orissa Staff Selection Commission issued an
advertisement through its Secretary on 12.03.2010 for
recruitment to the posts of Junior Assistant for the offices
of the Heads of the Department. In the said
advertisement, out of total number of 218 posts, 69 were
reserved for women. The advertisement also contemplated
that vacancies for ex-servicemen, sports persons and
physically handicapped category shall be filled up as per
rule in force. The number of vacancies shown above and
the category-wise reservation position were tentative and
subject to change as per rules as would be in force at the
time of publication of result/issuance of appointment
order.
2.1 Under clause 3 of the advertisement, the
educational qualification was prescribed. According to
said clause, the candidates must be an Intermediate/+2
Arts/ Science/ Commerce or equivalent from a recognized
University/Board and must have passed Oriya equivalent
to M.E. standard. The age limit was prescribed under
clause 4 that the candidates should not be less than 18
years and more than 32 years of age as on 01.01.1997.
However, a candidate completing 18 years of age, as on
01.01.2010, would also be eligible to apply. The upper age
limit was relaxable by 5 years in case of SC/ST and
women candidates, 3 years in case of SEBC candidates,
10 years in case of physically handicapped candidates,
and the period of entire admissible service rendered as
per rules in case of ex-servicemen, and only one type of
relaxation in age was permissible. Clause 5 of the
advertisement prescribes eligibility.
2.2. Pursuant to the said advertisement, the
petitioner submitted his application under Physically
Handicapped category against the vacancy made available
as per the rules. Clause 13 of the advertisement
prescribes the documents to be attached and Clause 13
(h) prescribes that in case of Physically Handicapped
persons, attested copies of certificates/identity cards
issued by competent authority are to be attached to
justify that he is physically handicapped. The petitioner
was an unemployed graduate belonging to unreserved
category and was also physically handicapped. His
application having been found in order, he was called
upon to appear both in "preliminary" as well as "main
written" examinations for the post of Junior Assistant.
2.3 Needless to say that when the petitioner
appeared the examination, in the OMR application form
he mentioned that he belongs to physically handicapped
category 'ORTHO'. The said OMR application, which was
received by the petitioner under RTI Act, has been
annexed as Annexure-3. Though select list was prepared
indicating the names of 295 candidates, the name of
petitioner did not find place in the said select list.
Therefore, the petitioner sought information under Right
to Information Act. In compliance to the same, he was
supplied with the mark sheet vide letter dated 17.08.2011
under Annexure-5, showing to have secured 171.75
marks, which was the highest mark in the PH category. In
spite of securing highest mark under PH category, his
name did not find place in the merit list. Therefore, the
petitioner sought information, by way of filing a
representation, as to under what circumstances his name
was not reflected in the select list. On consideration of his
representation, he was supplied with the information on
09.09.2011 under Annexure-7, that his representation
dated 16.08.2011 was verified and found that he had not
submitted P.H. Certificate from the competent authority
for which he was not considered eligible in the said
category. Hence, the petitioner approached the tribunal
by filing O.A. No. 334 (C) of 2012.
2.4. In the counter affidavit filed by the opposite
parties before the tribunal, it was indicated that the
examination had comprised two stages, one was
"preliminary" and the other was "main" examination. The
preliminary examination was only the screening test and
qualifying in nature. The select list was prepared basing
on sum total of marks in all subjects in the "main written"
examination in order of merit category-wise. The
petitioner applied in OMR application form, pursuant to
the advertisement, whereby he had claimed reservation
under Physically Handicapped category indicating
"ORTHO". It was mentioned in clause 13 (h) of the
advertisement under the heading "Documents to be
attached", that in case of physically handicapped
candidates, attested copies of the certificates/ identity
card issued by competent authority were to be attached
along with application form. But the petitioner had not
actually attached the disability certificate while
submitting his application form. The applicant had
submitted a xerox copy of the registration card issued by
Government of India, Ministry of Labour & Employment,
DGE&T, Vocational Rehabilitation Centre for
Handicapped, SIRD Campus, Bhubaneswar, which was
enclosed as Annexure-A to the counter affidavit filed by
the opposite parties before the tribunal. The disability
certificate issued by the district medical board, which had
been enclosed as Annexure-3 to the Original Application
and said to be have been attached with the OMR
application form, was not actually submitted while
submitting the application form. Therefore, the Joint
Secretary, Orissa Staff Selection Commission, while
verifying the documents, recorded on the application
folder on 30.06.2011 "No P.H. certificate (Medical Board)
available" with her signature. Therefore, even if the
petitioner had secured higher mark, his case was not
considered due to non-compliance of the conditions
stipulated in the advertisement itself. The tribunal
accordingly dismissed the original application filed by the
petitioner, vide order dated 09.11.2012. Challenging such
order of the tribunal, the petitioner has filed this writ
petition.
3. Mr. S.D. Routrary, learned counsel appearing
for the petitioner vehemently contended that the
petitioner had complied with the conditions stipulated in
Clause 13 (h) of the advertisement by providing Physically
Handicapped certificate, along with the registration card,
for the purpose of granting benefit of appointment under
PH category. But without taking the same into
consideration, the claim of the petitioner has been
rejected by the impugned order passed by the tribunal. In
support of his claim, learned counsel for the petitioner
has relied upon the decision of this Court in the case of
Amarjeet Jena v. Council of Higher Secondary
Education, Orissa, AIR 1990 Ori 129.
4. Mr. S.N. Nayak, learned Additional Standing
Counsel appearing for the State-opposite parties
contended that it was stipulated in clause 13 (h) that the
physically handicapped persons had to attach the
attested copies of the certificates/ identity card issued by
competent authority along with application form. As such,
the petitioner had not provided such document, but
stated in course of argument that he had supplied the
registration certificate. But that registration certificate
itself was not the requirement under the advertisement.
Thereby, the authority was well justified in not giving him
appointment under PH category, even if he had secured
higher mark in the said category, as stated by learned
counsel for the petitioner. It is further contended that the
petitioner had to adhere to the terms and conditions of
the advertisement itself and since the same was not
complied, the relief sought should not have been granted
in his favour. Therefore, the tribunal is well justified in
passing the order impugned, which does not warrant
interference at this stage.
5. Mr. S. Swain, learned counsel appearing for the
Orissa Staff Selection Commission-opposite party no.2
specifically contended that the petitioner had not
complied with the clauses of the advertisment, more
particularly clause 8, which deals with reservation. As per
such clause, the candidate claiming reservation under
any category as per clause-2 should furnish relevant
certificate issued by the competent authority in support of
their claim. It is also contended that clause 13 (h) of the
advertisement requires that in case of physically
handicapped persons, attested copies of the certificates/
identity card issued by competent authority was to be
attached along with application form. Moreover the
contention that such disability certificate issued by the
Medical Board was lost in transit or in Orissa Staff
Selection Commission does not stand to reason, in view of
the endorsement of the Joint Secretary, Orissa Staff
Selection Commission on 30.11.2011 at the time of
verification. The requirement was that the petitioner was
to provide the attested copies of certificate/identity cards
issued by competent authority. The petitioner had not
provided the same. As such, the Staff Selection
Commission, while scrutinizing the documents, took note
of the said fact and indicated that the benefit of
reservation under PH category cannot be extended to the
petitioner, as he had not complied the requirement of
clause 13 (h) of the advertisement issued by the
Commission. Thereby, he contended that the tribunal is
well justified in passing the order impugned, which does
not call for any interference by this Court at this stage.
6. This Court heard Mr. S.D. Routray, learned
counsel appearing for the petitioner; Mr. S.N. Nayak,
learned Additional Standing Counsel appearing for the
State-opposite parties; and Mr. S. Swain, learned counsel
appearing for the Orissa Staff Selection Commission by
hybrid mode, and perused the record. Pleadings having
been exchanged between the parties, with the consent of
learned counsel for the parties this writ petition is being
disposed of finally at the stage of admission.
7. From the factual matrix, as has been
delineated above, it emerges that undisputedly the
petitioner had claimed for reservation under PH category
in the recruitment to the post of Junior Assistant,
pursuant to the advertisement under Annxure-1.
Therefore, he had to comply the requirement of clause 13
(h) of the advertisement by attaching the attested copies
of the certificates/ identity card issued by competent
authority to the application form. But fact remains, the
petitioner had not provided such documents, as required
under the advertisement itself. It is contended by Mr. S.D.
Routray, learned counsel for the petitioner that he had
supplied copy of the registration certificate, but this was
not the requirement of the advertisement. On one hand,
Mr. Routray submitted that the petitioner had provided
the certificate issued by the competent authority
indicating physically handicapped category, whereas, on
the other hand, the opposite parties are disputing
submission such certificate. In a case involving disputed
question of fact, this Court does not interfere, being not a
fact finding Court.
8. Reliance was placed by the learned counsel
appearing for the petitioner on a judgment of this Court
in Amarjeet Jena (supra). In the said case, the issue for
consideration before the Court was that whether Counsel
of Higher Secondary Education was justified in
withholding the result of the petitioner therein. This
Court, considering the rival submissions of the parties,
held that a student of Arts or Commerce was permitted to
appear at Council Examination as private candidate
without studying in any School or College, but the
petitioner could not be admitted in second year of course
of Council. There was no logic or justification for not
permitting such a student to get admitted in 2nd year of
Course, if he had duly studied and successfully
completed 1st year of an accepted equivalent course with
same subjects. A student admitted into 2nd year of Higher
Secondary Course of Council would also be required to
pass qualifying Test Examination before being sent up to
take final Examination. Hence, Council of Higher
Secondary Education was not justified in withholding the
result of the petitioner therein. The ratio decided in the
said case is not applicable to the present case and
factually both the cases are totally different and are
distinguishable.
9. In the instant case, Clause 13(h) of the
advertisement unequivocally prescribes that in case of
physically handicapped persons, attested copies of the
certificates/ identity card issued by competent authority
were to be attached along with the application form. The
petitioner had only enclosed the registration certificate
issued in his favour by the Government of India, Ministry
of Labour and Employment, DGE&T, Vocational
Rehabilitation Centre for Handicapped, which according
to him is suffice to meet the requirement of clause 13(h).
But if specific documents are prescribed in the
advertisement to be supplied by the candidates and the
same were not filed by the petitioner, it cannot be said
that the petitioner has complied the conditions stipulated
in the advertisement. In absence of compliance of any of
the conditions of the advertisement, the petitioner cannot
claim the benefit as has been asked in the present writ
petition. Thereby, this Court does not find any error
apparent on the face of the order dated 09.11.2012
passed by the tribunal in O.A. No. 334 (C) of 2012 in
rejecting the claim of the petitioner. As such, the order
impugned passed by the tribunal does not require
interference by this Court at this stage.
10. In the result, the writ application merits no
consideration and the same is hereby dismissed. There
shall be no order as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
SAVITRI RATHO, J. I agree.
..................................
SAVITRI RATHO,
JUDGE
Orissa High Court, Cuttack
The 5th May, 2022, Arun/GDS
