Afr Avijit Pattnaik vs For
2023 Latest Caselaw 3623 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No. 5571 of 2016

        Application under Articles 226 and 227 of the Constitution
        of India.
                                   ---------------
AFR     Avijit Pattnaik                        ......           Petitioner

                                      -Versus-

        Union of India and others           .......           Opp.Parties

        Advocate(s) appeared in this case:-
        __________________________________________________________
            For Petitioners : Mr. Prafulla Kumar Rath, Advocates

            For Opp. Parties: Mr. N.K. Sahu, Advocate
                             [For NIT, Rourkela]
        __________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

18th April, 2023

SASHIKANTA MISHRA, J. The petitioner has filed this writ

petition with the following prayer;

"The petitioner, therefore, prays that Your Lordships would be graciously pleased to admit this writ petition, call for the records and after hearing the parties allow the same, issue writ/writs in the nature of certiorari/ mandamus and/or any other further writ/direction and quash the engagement order under Annexure-5 and selection of O.P. No.8 we well & consequently direct the NIT- opposite party No.2 to issue engagement order in favour of the petitioner, if the petitioner is

found to be empanelled and finds place in the second position in the panel.

And for this act of kindness, the petitioner shall as in duty bound ever pray."

In so far as the prayer for quashing the

engagement order under Annexure-5 relating to selection of

opposite party No.8 is concerned, the same no longer

survives in view of the fact that the said opposite party

No.8 has in the meantime been terminated from service

following a duly constituted disciplinary proceeding.

Therefore, the second prayer alone survives.

2. Briefly stated, the relevant facts are that an

advertisement was issued by the National Institute of

Technology, Rourkela (NIT) inviting applications for

different posts including the post of Technical Assistant.

The petitioner, claiming to possess the requisite

qualification submitted his application for the post of

Technical Assistant (Video Editing). He appeared in the

written test following by skill test and personal interview.

He came out successful in the written test and skill test

and was called to attend the personal interview along with

two other candidates including opposite party No.8. As

such, a panel of three candidates for Technical Assistant

(Video Editing) was prepared. However, the opposite party

No.8 was selected by order dated 03.04.2015, copy

enclosed as Annexure-5 to the writ application. Alleging

that the opposite party No.8 was not qualified and had

falsely projected himself as a qualified candidate, the

petitioner approached this Court in the present writ

application, filed on 28.03.2016. As already stated, the

opposite party No.8 was subsequently found to have

misrepresented facts for which he was terminated from

service by the NIT authorities after following due

procedure.

3. Heard Mr. P.K. Rath, learned counsel for the

petitioner and Mr. N.K. Sahu, learned counsel for the

opposite party- NIT.

4. Mr. Rath contends that the first part of the

prayer being no longer available to be claimed, necessary

directions may be issued to the NIT authorities to appoint

the petitioner in the vacancy created due to termination of

service of opposite party No.8. Mr. Rath further contends

that the select list was though valid for one year, the same

must be treated as still valid in so far as Technical

Assistant (Video Editing) is concerned, since the matter is

pending before this Court.

5. Mr. N.K. Sahu, on the other hand, has

opposed the contentions of Mr. Rath by submitting that the

opposite party No.8 was the only successful candidate,

whose name was recommended by the selection committee.

Since his services were terminated, the NIT have issued

another advertisement dated 13.12.2022 for recruitment to

different posts including the post of Technical Assistant

with one post being earmarked for candidates with

specialization in Video Editing. He further submits that

once the opposite party No.8 was appointed, the selection

process stood automatically concluded and therefore, the

case of the petitioner cannot be considered as per the

previous recruitment process.

6. The facts of the case being more or less

undisputed it is seen from the list enclosed as Annexure-4,

three candidates, namely, Rashmiranjan Sahoo, Avijit

Pattnaik (petitioner) and Abinash Biswal (opposite party

No.8) were invited to appear for personal interview.

Ultimately, opposite party No.8 was appointed by letter

dated 03.04.2015. It has not been disputed that opposite

party No.8 was terminated from service in the year 2022 by

the NIT authorities. According to Mr. Sahu, learned counsel

for NIT, recommendation of the selection committee expired

one year after expiry of the period of its publication. Thus,

the petitioner cannot raise any claim basing on the

recommendation made in the previous selection process.

7. Mr. Rath has however, cited a judgment of the

Apex Court in the case of State of U.P. VS. Ram Swarup

Saroj, reported in (2000) 3 SCC 699, wherein, taking note

of the fact that the writ petition challenging the selection

was filed before expiry of one year from the date of the

select list, the Apex Court granted the desired relief to the

petitioner therein.

8. In the instant case, the recommendation of the

selection committee was made on 01.04.2015 (copy

enclosed as Annexure-F/2 to the counter filed by NIT). As

already stated, the present writ petition was filed on

28.03.2016, i.e., before expiry of the period of one year

from the date of recommendation. There is however, no

panel as such. Nevertheless, it is not disputed that the

opposite party No.8 was terminated from service on the

ground of playing fraud for which his appointment has to

be treated as invalid from the very beginning. Under such

circumstances, the two other candidates, who were called

to the interview, can raise a claim for being considered in

the vacancy so created. Be it noted that merely because the

petitioner was called to attend the interview does not confer

on him any vested right of being appointed. Nevertheless in

view of the peculiar facts and circumstances obtaining in

the case vis-à-vis the selection and termination of services

of opposite party no.8, the case of the petitioner can at

least be considered against the vacancy. This is being said

because the earlier selection process cannot be said to have

been validly concluded in view of the termination of the

opposite party No.8 on ground of fraud and

misrepresentation of facts etc.

9. For the foregoing reasons therefore, the writ

application is disposed of directing the opposite party Nos.

2 and 3 to consider the case of the petitioner for selection

against the vacancy created by the termination of service of

opposite party No.8. A decision in this regard shall be

taken within a period of four weeks from the date of

communication of this order or on production of certified

copy thereof by the petitioner.

..................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 18th April, 2023/ A.K. Rana, P.A.