Orissa High Court
Arun Kumar Sahu And Others vs State Of Odisha And Others on 14 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 30102 of 2022
Arun Kumar Sahu and others .... Petitioners
Mr. A.K. Pandey, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. P.K. Mohanty,
Sr. Adv.(For O.P. Nos.2 & 3)
B.P. Tripathy, AGA
(For O.P. No.1)
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
14.11.2022
Order No.
01. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. The present writ petition has been filed by a group of
candidates, who had appeared in the recruitment test conducted by
the Odisha Public Service Commission (OPSC) for appointment to
the post of Assistant Section Officer (ASO) in Odisha Secretariat,
alleging mala fide and lack of transparency and fairness in the
selection procedure adopted by the OPSC.
3. The Petitioners have filed the present writ petition with a
specific prayer for quashing the impugned Office Order
No.1395/PSC dated 16.02.2022 under Annexure-5 to the writ
petition as well as the merit list dated 07.11.2022, i.e., roll list of
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short listed candidates for document verification under Annexure-3
to the writ petition.
4. The factual matrix of the case in gist leading to filing the
present writ petition is that the Petitioners are all meritorious
students and have passed HSC, +2 and other higher qualification
securing good marks. In the year 2021, the Petitioners, who were in
search of the job, came across an advertisement in the newspaper
regarding engagement of Assistant Section Officer in Group-B post
of Odisha Secretariat. The advertisement dated 31.12.2021 vide
Advertisement No.26 of 2021-22 issued by the OPSC for
recruitment to the posts of ASOs in Group-B of Odisha Secretariat
Service under Home Department, inviting online applications from
the prospective candidates through the Proforma application to be
made available on the website of the OPSC with the link for
registration/reregistration and payment of examination fees, is
attached to the writ petition as Annexure-1. On perusal of the said
advertisement, it appears that applications were invited from
desirous and eligible candidates for recruitment to 796 posts of
ASOs of Group-B in Odisha Secretariat. The scale of pay for the
said post was Rs.35,400/- in Level 9, Cell 1 as per the Pay Matrix
under the ORSP Rules, 2017 with usual Dearness and other
Allowances as would be sanctioned by the Government of Odisha
from time to time. On further scrutiny of the said advertisement, it is
revealed that the link shall be available for registration/reregistration
and payment of examination fee from 20.01.2022 to 19.02.2022. The
last date for submission of Registered Online Application for
recruitment to the aforesaid posts was 25.02.2022. The break-up of
the posts as well as other eligibility criteria including educational
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qualification have been specifically laid down in the above
advertisement under Annexure-1. It is alleged in the writ petition
that the conduct of the OPSC in the entire recruitment process was
not fair and transparent and that they have acted in a mala fide
manner and, accordingly, the Petitioners have preferred this writ
petition with a prayer to quash the merit list prepared by the OPSC
for verification of document for appointment to the posts of ASO
Group-B in the Odisha Secretariat.
5. Heard Mr. A.K. Pandey, learned counsel appearing for the
Petitioners and Mr. P.K. Mohanty, learned Senior Advocate
appearing for the Opposite Parties No.2 and 3 (OPSC) and Mr. B.P.
Tripathy, learned Additional Government Advocate appearing for
the State-Opposite Party No.1
6. Perused the writ petition as well the materials placed before
this Court for consideration.
7. Mr. A.K. Pandey, learned counsel appearing for the
Petitioners, at the outset, decries the opaque method followed by the
OPSC in publication of results after conclusion of the merit based
selection test. He further contends that the OPSC has changed the
rules of the game while the game was on. He further contended that
Resolution No.5395/PSC dated 3.9.2016 has been changed by the
PSC while the selection process was continuing pursuant to the
advertisement under Annexure-1. Further, learned counsel for the
Petitioners has also made several other allegations with regard to
acceptance of incomplete application and publication of result of
persons in the merit list, who had not appeared in the examination,
according to the learned counsel for the Petitioners. Therefore,
learned counsel for the Petitioners alleges mala fide and nepotism on
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the part of the OPSC and presenting a view of the several latches on
the part of the OPSC, learned counsel for the Petitioners also
submits that the selection process was not fair and transparent and
further alleged mala fide and nepotism in the process of the selection
cannot be ruled out, accordingly it was urged before this Court that
the entire selection be declared void and the merit list prepared by
the OPSC be quashed by this Court.
8. On a careful consideration of the submission made by
learned counsel for the Petitioners, this Court observes that the main
and the sole grievance of the Petitioners is that the change of
procedure with regard to publication of result as has been prescribed
in Resolution No.5395/PSC dated 3.9.2016 by the OPSC vide their
Corrigendum No.1395/PSC dated 16.02.2022 to OPSC Resolution
No.5395/PSC dated 3.9.2016, is the bone of contention of
Petitioners counsel's submission before this Court. It is further
contended that under the Resolution dated 3.9.2016 in Clause-2
provides for a specific mode and manner of disclosure of
information and publication of results. However, the same has been
sought to be modified/varied vide Corrigendum dated 16.02.2022. In
the Corrigendum, it is submitted that the Petitioners have objection
to the provisions, which are as follows:-
(i) The OPSC will provide marks to individual candidates
only.
(ii) Merit list of selected candidates will be published with
names, category, gender etc. without mentioning marks.
(iii) Cut off marks (category wise) and answer keys are to
be published online by the Commission soon after
publication of the results.
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(iv) The link regarding availability of marks secured by
the individual candidate will be 30(thirty) days from the day
of hosting in the website of the Commission.
9. Learned counsel for the Petitioners further contended that
the change which are sought to be introduced through the
Corrigendum dated 16.2.2022 was introduced for the first time while
the selection/recruitment process for appointment to the posts of
ASO was going on. Therefore, the learned counsel for the Petitioner
argues that such Corrigendum amounts to change of the rules of the
game while the game is on. He further submits that such an approach
by the recruitment agency/board/commission has been deprecated by
this Court as well as the Hon'ble Supreme Court in many judgments.
He further contends that the Petitioners appeared in the examination
under the impression that while publishing the resolution, the OPSC
will follow the Resolution dated 3.9.2016. However, in the midst of
the selection process, the same has been changed in a clandestine
manner without any notice to the candidates who were appearing in
the recruitment test. Therefore, it is submitted by the learned counsel
for the Petitioners that the modification which the OPSC wants to
introduce through the Corrigendum shall not be applicable to the
result published pursuant to the recruitment under the advertisement
under Annexure-1. The advertisement under Annexure-1 for
recruitment in the present matter was published prior to the
Corrigendum was issued. Therefore, it is argued that issuance of
Corrigendum while the selection process is on is illegal and arbitrary
exercise of power conferred upon the OPSC and, as such, the same
is liable to be quashed.
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10. It is relevant to note here that the principle of fairness and
transparency in the recruitment process should not remain as a
policy decision and every endeavour must be made by the
recruitment agency, i.e., the OPSC to ensure that the same is actually
followed in their conduct and action. Furthermore, it is act to
reiterate the principle that the rules of the game cannot be changed
while the game is on or after the game is played. Such principle has
been adopted and followed consistently by the Public Service
Commissions in the country. The leading judgment of the Hon'ble
Supreme Court on the issue is in the matter of Secretary, A.P.
Public Services Commission -Vrs.- B. Swapna and Ors., reported
in (2005) 4 SCC 154 wherein an identical question arose for
consideration, i.e., whether the rules of the recruitment process could
be changed while the process is on. The Hon'ble Supreme Court
referring to the aforesaid principle held that the changed rules must
have prospective application. Therefore, the same should not have
been applied to the recruitment process which was going on. In this
context, there are several judgments of the Hon'ble Supreme Court
like in cases of K. Manjusree -Vrs.- State of Andhra Pradesh &
Anr., reported in (2008) 3 SCC 512; Bishnu Biswas & Ors. -Vrs.-
Union of India & Ors., reported in (2014) 5 SCC 774; and
Maharashtra State Road Transport Corpn. & Ors. -Vrs.- Rajendra
Bhimrao Mandve & Ors., reported in (2001) 10 SCC 51 and of
course a decision of the Hon'ble Supreme Court in the matter which
went from this Court in the case of Durga Ch. Mishra v. State of
Orissa & Ors., reported in (1987) 4 SCC 646. Therefore, there is no
dispute with regard to the proposition that the change in the rules
relating to recruitment are always prospective and as such, the rules of
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the game cannot be changed while the game is on or after the game
is played.
11. Mr. P.K. Mohanty, learned Senior Advocate appearing for
the Opposite Parties No.2 and 3 (OPSC) submitted that the Opposite
Parties No.2 and 3 have not committed any illegality at all. He
further submits that a fair and transparent procedure is consistently
followed by the OPSC in all recruitment test conducted by it
including the present selection. Therefore, the allegation against the
OPSC is far-fetched and baseless. Mr. Mohanty further submits that
the Corrigendum dated 16.2.2022 was issued pursuant to a judgment
of the Hon'ble Supreme Court. Therefore, no fault can be found with
the OPSC in issuing the Corrigendum and applying the same to the
current recruitment process. So far other allegation made by the
learned counsel for the Petitioners, it is emphatically submitted by
Mr. Mohanty that those allegations are all baseless and vague and
not supported any material at all.
12. Mr. B.P. Tripathy, learned Additional Government Advocate
appearing for the State-Opposite Party No.1 supported the argument
advanced by Mr. Mohanty, learned Senior Advocate appearing for
the Opposite Parties No.2 and 3 (OPSC), also contended that the
OPSC is a body created under the Constitution and it has been
discharging its duties sincerely over the years. Therefore, the
Petitioners are not justified in their approach in making wild
allegations against a Constitutional Body without any basis and
materials to substantiate their allegations. Therefore, Mr. Tripathy,
learned Additional Government Advocate urges before this Court
that the writ petition is devoid of merit and should be rejected at the
threshold. It is also contended by Mr. Tripathy that any interference
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by this Court at this stage would only delay the process of
recruitment which would cause a great inconvenience in the smooth
functioning of the Odisha Secretariat.
13. Having heard the learned counsel appearing for the
respective parties and upon a careful consideration of the rival
contentions, this Court is of the opinion that out of the several
allegations made by the learned counsel for the Petitioners, the only
allegation with regard to issuance of the Corrigendum while the
recruitment process was on, has some substance and all other
allegations are found to be not supported by any material. This Court
also examining the issue from the point of view of fairness and
transparency that is required to be maintained by the OPSC while
conducting the recruitment test. This Court is also of the view that
the OPSC being a creature of the Constitution of India, the Members
and Officers manning such an important institution must conduct
themselves in the most fair and transparent manner. Further, the
OPSC shall conduct itself in such a manner that the faith and trust of
the candidates who are appearing in the test conducted by it are
retained, i.e., it is important to uphold the institutional integrity of a
sacred institution like the OPSC by its conduct. Every action taken
by the OPSC has to be above suspicion so that the public trust and
faith in the institution could be retained for all time to come. No
doubt, the duty that is being performed by the OPSC is humongous
and it has been working round the clock to provide suitable
candidates to the Government and other institutions in a time bound
manner. However, this Court is only disturbed by the Corrigendum,
which was issued while the selection process was on, i.e., on
16.02.2022. At this stage, this Court would refrain for making any
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comment on the changes likely to be introduced through the
Corrigendum. However, it would have been desirable to implement
the same to subsequent advertisement for recruitment after the
Corrigendum was issued.
14. Mr. P.K. Mohanty, learned Senior Advocate appearing for
the OPSC and Mr. B.P. Tripathy, learned Additional Government
Advocate appearing for the State-Opposite Party No.1 very fairly
submitted at this juncture that the Corrigendum dated 16.02.2022
under Annexure-5 shall not be insisted upon and followed for the
recruitment to the posts of ASOs in Group-B to Odisha Secretariat
pursuant to advertisement under Annexure-1. Therefore, they are
ready and willing to follow the procedure provided in Resolution
No.5395/PSC dated 3.9.2016 without the Corrigendum dated
16.02.2022.
15. Accordingly, this Court without expressing any opinion on
the Corrigendum dated 16.02.2022 under Annexure-5 to the writ
petition, disposes of the writ petition by directing the Opposite
Parties to follow the Resolution No.5395/PSC dated 3.9.2016 in its
letter and spirit without following Corrigendum dated 16.02.2022.
Further, it is made clear that it is open for the OPSC to follow the
procedure laid down in the Corrigendum under Annexure-5 to all
subsequent advertisement for recruitment. It is further directed that
the Opposite Parties No.2 and 3 shall do well to follow the
procedure as has been prescribed in Resolution No.5395/PSC dated
3.9.2016 forthwith.
16. With the aforesaid observations and directions, the writ
petition is disposed of.
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17. Urgent certified copy of this order be granted on proper
application.
(A.K. Mohapatra)
Judge
Debasis
