Orissa High Court

Pravakar Jayasingh And Others vs State Of Odisha & Another on 18 April, 2023

       IN THE HIGH COURT OF ORISSA AT CUTTACK

               W.P.(C) No.26229 of 2020
                          And
               W.P.(C) No.26393 of 2020

  (Applications under Articles 226 and 227 of the Constitution of
  India)

   In W.P.(C) No.26229 of 2020

       Pravakar Jayasingh and others ...          Petitioners

                         -versus-

       State of Odisha & another         ... Opposite Parties


Advocates appeared in the case through hybrid mode:

       For Petitioners         : Mr.B. P.Das,
                                 Advocate

                         -versus-

       For Opposite Parties : Mr. Sandeep Parida,
                              Sr. Standing Counsel
                              With Mr. P.K.Panda,
                              Standing Counsel,
                              (S & M.E Department)

In W.P.(C) No.26393 of 2020

       Durga Bhusan Barik and others
                                   ... Petitioners

                         -versus-

       State of Odisha & another        ... Opposite Parties




                                              Page 1 of 19
            Advocates appeared in the case through hybrid mode:

                For Petitioners                      : Mr.B. Routray,
                                                       Sr.Advocate
                                                       Mr. S.D.Routray,
                                                       Advocate

                                              -versus-

                For Opposite Parties                : Mr. Sandeep Parida,
                                                      Sr. Standing Counsel
                                                      with Mr. P.K.Panda,
                                                      Standing Counsel,
                                                      (S & M.E Department)

            ---------------------------------------------------------------------------
                CORAM:

                               JUSTICE SASHIKANTA MISHRA

                                            JUDGMENT

18.4.2023.

Sashikanta Mishra,J. Common questions of law and fact are

involved in both the Writ Petitions. Thus, both were

heard together and are being disposed of by this

common judgment.

2. An advertisement was published by the Director of

Secondary Education on 23rd February, 2019 for

recruitment to the posts of contractual Trained

Graduate Teachers in Government Schools in P.C.M.,

C.B.Z and Arts disciplines. 1828 number of posts were

offered for recruitment. The advertisement contained

the particulars of qualification and method of selection

etc. The case of the Petitioners is that they appeared in

Online Computer based qualifying examination and

having qualified, their names were included in the

draft common merit list. They were called upon for

document verification from 5th September to 12th

September, 2019. Their documents were verified and a

draft reject list was published and objections were

invited from the candidates to submit objections

relating to errors if any in the draft common merit list

and draft reject list. On 25th October, 2019 a

provisional select list of the candidates out of the

provisional common merit list was published wherein

the names of the Petitioners did not find place. Feeling

aggrieved, some of the Petitioners challenged the

selection process before this Court in W.P.(C)

No.20604/2019. By order dated 25th February, 2020

passed in W.P.(C) Nos.20604 and 20559 of 2019, this

Court directed the authorities to consider the grievance

of the Petitioners afresh and if they are within the zone

of consideration, to take necessary steps for their

appointment. A contempt application was also filed

being CONTC No.2558/2020, which was disposed of by

order dated 10th September, 2020 directing the

Opposite Parties to work out the directions of this

Court in order dated 25th February, 2020 within six

months. It is the further case of the Petitioners that

out of 1848 vacancies only 1548 candidates were

selected. Out of the said 1548 candidates, 1235

candidates joined and the rest 593 candidates did not

join, for which such number of posts fell vacant.

According to the Petitioners, once some of the selected

candidates did not join, the remaining candidates

ought to be considered for appointment since they

were placed in the provisional common merit list.

Moreover, there being large number of vacancies

available, the Petitioners should be considered for

appointment against such vacancies.

3. The case of the Opposite Parties is that

undoubtedly common merit list was published, which

is the list of all candidates finally found eligible after

verification of documents and objections to draft list. In

the list all the eligible candidates are arranged in order

of marks secured in the Computer based test

irrespective of their social/reservation category. Out of

the common merit list, the select list of each social

reservation category such as SC/ST/SEBC and UR

were prepared and published being approved by State

Selection Committee. The said lists were prepared

taking number of candidates equal to the number of

posts advertised for each reservation category. The

Petitioners were not included in the draft common

merit list as well the final common merit list as they

could not come to the range of selection as per their

final position in the merit list. It is further stated that

publication of select list of 100% of posts advertised

has nothing to do with the waiting list. They could not

be selected as the select list was limited to number of

vacancies advertised and their marks were below the

cut-off, i.e. the mark of last candidate of the select list.

There is no provision in the advertisement for

preparation of second merit list or waiting list so as to

consider the case of the Petitioners because of non-

joining of some of the finally selected candidates. It

has been clarified that there is no cut-off mark for

selection but the marks secured by the last candidate

in the select list of each category is presumed as the

cut-off mark.

4. Heard Mr. B. Routray, learned Senior counsel with

Mr. S.D. Routray, learned counsel for the Petitioners,

who led arguments on behalf of all the Petitioners, and

Mr. Sandeep Parida, learned Senior Standing Counsel

appearing for the School and Mass Education

Department being assisted by Mr. P.Panda, learned

Standing Counsel for the said department.

5. According to Mr. Routray, the Opposite Party-

authorities adopted a completely wrong procedure of

selection as a result of which, the Petitioners being

eligible to be considered were left out. Mr. Routray

contends that Clause-9(h) of the advertisement clearly

states that select list for each social reservation

category will be prepared for the State Common Merit

List taking number of candidates equal to 100% of the

number of vacancies for each category in the state as

a whole. Therefore, the select list ought to have been

prepared for 1828 candidates, but the authorities

prepared select list for only 1548 candidates and

thereby violated the terms of the advertisement. Mr.

Routray, further argues that even out of such 1548

selected candidates, 303 did not join and thus, the

actual selected candidates were 1238. The Petitioners

ought to have been adjusted against such unfilled

vacancies. The advertisement does not prescribe any

cut-off mark for selection but the authorities appear to

have applied a cut-off mark arbitrarily for which the

Petitioners were illegally left out of the selection

process.

6. Mr. Sandeep Parida, learned Sr. Standing counsel,

submits that out of 1828 posts, 280 posts belonging to

SC and ST candidates were not available for selection

and therefore, the total number of posts available for

selection came down to 1548. Mr. Parida, further

argues that the procedure laid down in the

advertisement under Clause-9 thereof was strictly

followed inasmuch as category wise lists equal to 100%

of the posts available under each category were

published. The Petitioners were placed below the last

candidates of each of the categories. There is no

provision in the advertisement for having a waiting list

and therefore, all unfilled vacancies have to be carried

forward to the next recruitment process. Mr. Parida

emphatically argued that no cut-off mark was applied

in the selection process, rather the Petitioners were

placed below the last person selected in each category

on merit. Therefore, according to Mr. Parida there was

no necessity to consider the case of the Petitioners.

7. The facts and contentions being as narrated above,

the question that falls for consideration before this

Court is, whether the procedure of selection prescribed

in the advertisement was followed.

8. Reference to the advertisement (copy enclosed as

Annexure-1 in W.P.(C) No.26229 of 2020) reveals that

1828 vacancies, which included unfilled vacancies of

previous recruitments were notified for being filled up.

The process of selection is described under Paragraph-

9, which is quoted herein below;

<9.Method of Selection:

(a) The selection will be made on the basis of result of online (Computer based) Competitive Examination. The Scheme and Syllabus of examination is placed at Appendix-B.

(b) A candidate has to secure minimum 35% (30% in case of candidates of SC/ST category) marks in each paper to qualify in the examination.

(c) The provisional rank list shall be prepared taking the qualifying candidates only. Names of candidates in the provisional rank list shall be arranged in order of marks secured by the candidates in the examination. In case of two or more candidates secure the same marks the candidate older in age will be placed above in the rank.

(d) Out of the list prepared as per para 9(c) candidates equal to 120% of the vacancies of each

social reservation category shall be called to get their documents verified at District level. The district mentioned in the permanent address in the application form shall be taken as the district in which the documents of a candidate are to be verified.

(e) The eligibility of candidates included in the rank list prepared as mentioned in para 9(c) shall be determined through verification of all relevant documents in support of age, qualification and other eligibility conditions laid in the advertisement.

(f) Place and dates of verification of documents of candidates shall be published in the website after finalization of results of the online examination.

(g) The provisional common merit list for the state finalized after determination of eligibility as in para 9 (d ) shall be treated as Draft merit list and this along with the list of in-eligible candidates shall be published for inviting objections. After necessary corrections the merit lists will be finalized.

(h) Select list for each social reservation category will be prepared from the State common merit list tasking number of

candidates equal to 100% of the number of vacancies for each of the category in the state as a whole.

(i) Inclusion of the name of a candidate in the Merit List/Select List confers no right on the candidate to engagement unless Govt. or the State Selection Committee or the Appointing Authority are satisfied after such inquiry or re-verification of documents, as may be considered necessary, that a candidate is suitable in all respects for engagement to the service.=

From the relevant provisions of the

advertisement quoted above, the following facts

emerge-

All candidates are to appear in the Online

(Computer based) Competitive Examination and those

who secure 35% (30% in case of SC/ST candidates)

marks in each paper shall qualify. A provisional rank

list of such qualifying candidates shall be prepared

being arranged in the order of marks secured by them.

Thereafter candidates equal to 120% of the vacancies

of each social reservation category from out of the

provisional rank list shall be called for document

verification. After document verification, a provisional

common merit list along with list of ineligible

candidates shall be published for inviting objections.

After necessary corrections, if any, the merit list will be

finalized. Most importantly, select list for each social

reservation category will be prepared from the State

Common Merit List taking number of candidates equal

to 100% of the number of vacancies in each of the

categories in the state as a whole. Be it noted that the

advertisement does not provide either for fixation of

cut-off marks or for preparation of any waiting list.

9. Coming to the facts of the case at hand, it is seen

that the following was the vacancy of different posts

advertised;

Unfilled Vacancies Previous Regular vacancies recruitments GRAND TOTAL

TOTAL

Post SEBC

SEBC

Sl TOTAL UR

UR SC

SC ST

ST

1 2 3 4 5 6 7 8 9 10 11 12 13 (7+12) 1 TGT PCM 34 11 15 8 68 94 31 42 21 188 256 2 TGT CBZ 33 10 15 7 65 105 34 47 24 210 275 3 TGT Arts 186 60 83 42 371 463 150 209 104 926 1297 Total 253 81 113 57 504 662 215 298 149 1324 1828

10. It has been stated in the counter affidavit that 280

posts belonging to SC and ST were not available for

selection though the reason thereof has not been

specified. Be that as it may, if such number of posts

are taken away from the total number of posts notified

(1828-280), then 1548 posts were available belonging

to different categories. It has further not been specified

as to of which discipline namely, PCM, CBZ or Arts,

the 280 vacancies of SC and ST are applicable. As

regards the selection made for TGT (Arts), it is seen

that the category wise posts would be as follows;

TGT (Arts) UR 186+463=649 SC 60+150 =210 ST 83+ 209 =292 SEBC 42+104 =146

11. This Court would now ascertain as to if the select

list of candidates was equal to 100% of the posts

available under each category. In the resolution dated

25th October, 2019, the provisional select list for each

of the categories were published. It is indicated that

one post under SEBC category was reserved as per

order dated 4th October, 2019 passed in W.P.(C)

No.19056/2019; one post in SC category (Ganjam) was

kept reserved in view of the order dated 31st July, 2019

of the OAT in O.A. No.930/2019 and one post of SC

(Ganjam) was kept reserved as per order dated 31st

July, 2019 of the OAT in O.A. No.931/2019. It is

further seen that the provisional select list was

published for 649 candidates in UR category, 208 in

SC category, 133 in ST category and 145 in SEBC

category. The short fall of two candidates in respect of

SC and one candidate in SEBC was obviously because

of the aforementioned interim order of this Court/OAT.

In so far as the shortfall in ST is concerned, it would

obviously relate to the non-availability of candidates.

This Court therefore, finds that the provisional select

list was published entirely as per the advertisement.

This Court has also perused the provisional select list

of candidates under different categories for TGT (PCM)

and TGT (CBZ) and finds that the same is equal to

100% of the posts notified and shortfall wherever

found, is because of non-availability of SC and ST

candidates and interim order passed by this Court.

Therefore, this Court finds nothing wrong in the

procedure adopted by the authorities in preparation of

the provisional select list. It is not the case of the

Petitioners that they were placed higher than the last

man selected under each of the categories. Had such

been the case, the matter would have been entirely

different.

12. This Court has already noticed that the

advertisement does not provide for publication of

waiting list. Much argument has been made from the

stand taken by the Opposite Parties in paragraph-21 of

their counter filed in W.P.(C)No.20604/2019, which is

quoted herein below for immediate reference;

<That the Petitioners have submitted an additional affidavit in the instant case wherein they have alleged that the Opposite Parties have published the select list without publishing the waiting list in consideration of their representation as directed by the H9on'ble High Court in the final order dated 26.9.2019 passed in W.P.(C) No.18006/2019. In response to this, it

is submitted that the Hon'ble Court had given 3 months time for disposal of the representation and the matter is under examination by the Opposite Party No.1. Further, publication of select list for 100% of the posts advertised has nothing to do with the waiting list.

Question of waiting list may come when posts finally taken up for selection remain unfilled due to non-joining of candidates or candidates not attending verification of documents or agreement before engagement.=

Referring to such stand, Mr. Routray has

argued that when the authorities themselves admit

that the question of waiting list would arise when posts

remained unfilled due to non-joining of the candidates,

they cannot turn around and take the plea that there

is no provision in the advertisement for waiting list.

Responding to such argument, Mr. Parida submits that

in the Writ Petitions the Petitioners had alleged that

the Opposite Parties violated the order passed by this

Court in publishing the provisional select list dated

25th October, 2020. It is in such context and to

highlight the stage at which the question of waiting list

generally comes that the above statement was made in

the counter affidavit. Nevertheless the terms of the

advertisement would reign supreme.

13. From the arguments advanced on behalf of the

Petitioners, it observed that what they essentially claim

is, several vacancies, 593 to be precise, being still

available to be filled up for non-joining of selected

candidates, a second merit list or a sort of waiting list

should have been prepared and appointments offered

to the Petitioners. Whether such recourse can be

taken by the authorities in the absence of any rule or

provision in the advertisement came for consideration

before the Apex Court in the case of Vallampati

Sathish Babu vs. State of Andhra Pradesh and

others; reported in 2022 SCC Online SC 470. After

referring to the facts and contentions raised, the Apex

Court held as follows;

"29. The appellant could have claimed the appointment to the post which remained unfilled provided there is a provision for waiting list as per the statutory provision. In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining

unfilled on any ground shall have to be carried forward for the next recruitment.

The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled.=

Of course, in the said case the relevant rule had

a provision which specifically provided that there shall

not be any waiting list. Nonetheless, the same principle

would apply to the present case in the absence of a

provision for waiting list. The principle reiterated by

the Apex Court in the same decision is as under;

<32. An identical question came to be considered by this Court in the case of Suresh Prasad (supra). In the said decision, it is specifically observed and held that even in case candidates selected for appointment have not joined, in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. It is also further held that in the absence of any provision, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates from the waiting list in case the candidates from the panel do not join. The aforesaid decision of this Court has been subsequently followed by the Andhra Pradesh High Court in the case of Samiula Shareef (supra).=

14. In view of the position of law as above, there is no

way by which the Petitioners can claim to be

considered for appointment against the unfilled

vacancies. This Court cannot issue any direction de

hors the terms of the advertisement as the decision to

provide for waiting list or not has to be left to the

sound discretion of the employer.

15. Thus, on a conspectus of the analysis of facts and

contentions narrated hereinbefore, this Court finds

nothing wrong in the process of selection adopted by

the opposite party-authorities so as to be persuaded to

interfere. Resultantly, the Writ Petitions being devoid of