Orissa High Court
Niva Nayak vs F.M. University & Others .... Opposite ... on 13 December, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21396 of 2023
In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950.
..................
Niva Nayak .... Petitioner
-versus-
F.M. University & Others .... Opposite Parties
For Petitioner : M/s.S.K. Das, P.K. Behera &
N. Jena.
For Opp. Parties : M/s. Mr. D. Mohapatra, Adv.
for O.P.1,3 & 4, Mr. N.K.
Sahu, Adv. for O.P.5
Mr.K.C.R. Mohapatra Adv. for
O.P.6
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------
Date of Hearing:14.08.2023 and Date of Judgment:05.12.2023
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Biraja Prasanna Satapathy, J.
1. The Petitioner has filed the present Writ Petition
challenging the communication issued by the Registrar
Fakir Mohan University, Vyasa Vihar (North Campus), (in
short 'University') under Annexure-9, wherein the claim of
the Petitioner for her appointment as against the post of
Associate Professor in the discipline of Chemistry, pursuant
// 2 //
to the selection process initiated vide advertisement
dtd.10.07.2019 under Annexure-1 was rejected.
2. It is the case of the Petitioner that pursuant to the
advertisement issued by the University on 10.07.2019
under Annexure-1 for the post of Associate Professor in
different discipline, Petitioner made her application in
respect of the discipline Chemistry as an Unreserved
(Women) category candidate. In the advertisement issued
under Annexure-1 as against two posts of Associate
Professor so advertised in the discipline of Chemistry, one
was reserved for Unreserved (Male) and the other one for
Unreserved (Women) candidate. Pursuant to the said
advertisement issued under Annexure-1, Petitioner made
her application on 02.08.2019 vide Annexure-2 and the
application of the Petitioner being found in order in all
respect, vide Annexure-3, Petitioner was called to appear
the interview on 16.03.2020 and for verification of
documents on the date of interview itself.
2.1. It is contended that in terms of such intimation
issued under Annexure-3, Petitioner appeared in the
interview. However after due verification of all the
documents as required, when both the posts of Associate
Professor in the discipline of Chemistry was filled up by
Unreserved (Male) candidates and it was indicated in the
// 3 //
proceeding of the meeting of the Selection Committee so
held on 16.03.2020 under Annexure-5, that since no
women candidates were found suitable, a male candidate
was selected as against UR (Women) category, Petitioner
challenging such action of the University in declaring her
unsuitable with the recommendation made in favour of
Opposite Party Nos.5 & 6 approached this Court in W.P.(C)
No.19275 of 2021, challenging the decision of the Selection
Committee so issued under Annexure-5. Petitioner prayed
for the following relief in W.P(C) 19275 of 2021.
"Under the above circumstances, it is therefore humbly
prayed that the Hon'ble Court be graciously pleased to quash
the entire selection of Associate Professor in PG Department
of Chemistry of Fakir Mohan University under Annexure-5
and also quash the consequential appointments of the
Opposite Party No.5 and 6 thereof;
And further the Hon'ble Court be pleased to direct
Opposite Parties No.1 and 3 to appoint an women candidate
against the UR (Women) post of Associate Preofessor in
Chemistry by an eligible women candidate preferably the
petitioner, who has better academic achievements,
experiences and publications then all other women candidate
and to grant all consequential service and financial benefit
within a stipulated period as deem fit and proper".
2.2. This Court after hearing learned counsels appearing
for the Parties and after going through the materials
available on record, disposed of the writ petition vide order
dtd.09.09.2022. Since it was the stand of the Petitioner in
the earlier writ petition that the post meant for UR (Women)
candidate cannot be filled up by UR (Male) category
candidates, because of the provisions contained under
// 4 //
Odisha Civil Services (Reservation of Vacancies for Women
in Public Services) Rules, 1994 (in short 1994 Rules) and
the method of selection prescribed in the amended Odisha
Universities First Statute, 1990, this Court while disposing
the writ petition vide order under Annexure-8 issued the
following direction on the University. The view of this Court
reflected in Para-7 and the direction of this Court reflected
in Para-8 of the order are quoted hereunder:-
"7. In such view of the matter, this Court is of the view
that since the reservation of women candidate flaws from the
mandate of the Constitution of India, the said constitutional
mandate has to be strictly followed. In view of such
mandate, the Selection Committee should relook the selection
process especially with respect to selection of Associate
Professor in the Department of Chemistry of Fakir Mohan
University, Vyasa Vihar, District-Balasore, considering the
Rules and the Advertisement dated 10.07.2019 under
Annexure-1.
8. In view of the above, let the University relook the
entire issue afresh as stated above taking into account the
Rules and the Advertisement dated 10.07.2019 under
Annexure-1 within a period of two months from today".
2.3. The order passed by this Court on 09.09.2022 was
further modified vide order dtd.21.11.2012.The modified
order dtd. 21.11.2022 is quoted hereunder:-
1. This matter is taken up through hybrid arrangement.
2. This is an application correction of the order dated
09.09.2022 passed in W.P.(C) No.19275 of 2021.
3. Heard.
4. Considering the averments made in the I.A., the
prayer for modification is allowed. The modified paragraphs
i.e., 6 & 8 of the order are reproduced hereunder and read as
such.
// 5 //
6. However, it is also true that this Court cannot sit
as a Super Selection Committee to decide as to whether the
Petitioner is suitable or not. It is also quite apparent that
the reason for unsuitability of the present Petitioner has not
been reflected in the Resolution of the Selection Committee.
xxx xxx xxx
8. In view of the above, let the University relook
the entire issue afresh as stated above taking into account
the Rules and the Advertisement dated 10.07.2019 under
Annexure-1 within a period of one month from today i.e.
21st of November, 2022.
5. With the aforesaid modification, the I.A stands
disposed of".
2.4. It is contended that without following the direction so
contained in order dtd.09.09.2022 and so modified vide
order dtd.21.11.2022, Opposite Party-University by taking a
new plea that the Petitioner since could not secure the
required cut-off mark of 50%, the Selection Committee did
not found her suitable and opined that due to non-
availability of suitable women candidate, the post so
reserved for UR (Women) category was filled up by UR
(Male) category, candidates vide the impugned
communication issued on 19.04.2023 under Annexure-9.
The Present Writ Petition has been filed inter alia
challenging the order of the University so issued by
Opposite Party No.1 on 19.4.2023 under Annexure-9.
3. Learned counsel for the Petitioner contended that the
Petitioner with having the requisite qualification and the
eligibility in all respect made her application as against the
post of Associate Professor in the discipline of Chemistry,
// 6 //
pursuant to the advertisement issued by the University on
10.07.2019 under Annexure-1. The eligibility criteria
reflected in the said advertisement as against the post of
Associate Professor is quoted hereunder:-
"B. Associate Professor
Eligibility
(i) A good academic record, with a Ph.D Degree in the
concerned/allied/relevant disciplines.
(ii) A Master's Degree with at least 55% marks (or an equivalent
grade in a point-scale, wherever the grading system is
followed)
(iii) A minimum of eight years of experience of teaching and/or
research in an academic/research position equivalent to that
of Assistant Professor in a University, College or Accredited
Research Institution/industry with a minimum of seven
publications in the peer-review or UGC-listed journals and a
total research score of Seventy-Five (75) as per the criteria
given in Appendix-II, Table 2 of the UGC Regulation 2018".
The Petitioner in terms of Anneuxre-1 made her
application for the post of Associate Professor in the
discipline of Chemistry under Annexure-2 and along with
her application, Petitioner enclosed all the documents in
support of her teaching experience as well as publication of
Journals on 02.08.2019. The application of the Petitioner
so submitted under Annexure-2 having been found in order
in all respect, Petitioner vide letter dtd.26.02.2020 so
issued by Opposite Party No.1 under Annexure-3, was
directed to appear in the interview, which was fixed to
16.03.2020 and for verification of all documents.
// 7 //
3.1. It is contended that the selection for the post of
Associate Professor in terms of Annexure-1 was required to
be conducted in terms of the provision contained in the
amended Schedule-A of Odisha Universities First Statute,
1990. Schedule-A of the Odisha Universities First Statute,
1990 prescribed the method of evaluation of the candidates
for different teaching post in the University. The evaluation
as prescribed in the amended Schedule-A of the First
Statute is quoted hereunder:-
"Amendment
of
Statute-3
"2. In the Orissa Universities First Statutes,
1990 (hereinafter referred to as the said statutes), in
clause (ii) of sub-statute(5) if statute 4, after the word
"Professor" the comma and the words "Reader and
Lecturer" shall be inserted.
Amendment of Statute-258 Schedule-'A'
3. In the said statutes, for Schedule 'A' the
following Schedule shall be substituted, namely:-
"SCHEDULE-'A'
(Statute-258)
Evaluation of candidates for different teaching post in the University
(Professor, Reader, Lecturer)
(1) GENERAL CAREER (30 MARKS)
(A) 1st Class 2nd Class 3rd Class
(iii) Degree. Honours 8 4 1.5.(pass)
(iv) Distinction 2 2 2 (pass)
// 8 //
(v) P.G. Degree
45-54% 4".
(b) Marks for matriculation and Intermediate may be re-distributed
as follows in the case of candidate passing Higher Secondary/ Pre-
University/Pre-Professional etc. in case where Higher Secondary
Examination is initial assessable examination.4.S.6. mark (of 4.2.1) be
added to it making it 6.3 and 1.5. for I, II and III division.
1st Class 2nd Class 3rd Class
(i) Higher Secondary 6 3 1.5
(ii) Pre-University 2 1 0.5
(iii) Pre-Profession 2 1 0.5
(c) In case of candidates from Universities/ Institutions which follow
the system of grade their grades shall be converted to mark as under-
'C' Grade -75-100%
'A' Grade -65-74%
'B' Grade -55-64%
'C' Grade -45-54%
'D' Grade -35-44%
(d) In the case of candidates with more than one Bachelor's Degree,
only the Degree in the concerned subject shall be awarded marks and
the Division obtained will be treated at par with the Honours.
2. RESEARCH DEGREE : 20 MARKS)
M.Phil -03 marks
Ph.D. Degree -10 marks
D.Sc.D.Litt. -12 marks
M.Phil + Ph.D. -12 marks
M.Phil+D.Sc./D.Litt -14 marks
Ph.D + D.Sc./D.Sc./D.Litt-20 marks
M.Phil+ Ph.D.+ D.Sc./D.Litt-20 marks
3. TEACHING EXPERIENCE (10 MARKS)
(For each completed year one mark in case of P.G. Teaching.
0.75 marks for Honours teaching and 0.5 marks Graduate level
teaching subject to a maximum of 10 marks over and above the
minimum prescribed years).
4. Ph. D GUIDANCE (5 MARKS)
One mark shall be awarded for each Ph.D. awarded under the
guidance of the candidate subject to a maximum of 5 marks.
5. RESEARCH PUBLICATIONS (15 MARKS)
( IN MARKS FOR PUBLICATION IN International Journal and 5 marks
for publication in the National Journals).
6. VIVAVOCE (15 MARKS)
7. C.C.Rs Performance Appraisal Report (5 marks)".
3.2. It is contended that since as against two posts of
Associate Professor in the discipline of Chemistry, one post
was reserved for UR (Women) category, Petitioner having
// 9 //
made her application as against the said category, the
provisions contained under the Odisha Civil Service
(Reservation of Vacancy for Women in Public Services)
Rules, 1994 (in short 1994 Rules) is required to be followed.
3.3. It is contended that Rule-4 of the aforesaid 1994
Rules provides as under:-
"4. Reservation-(1) The following percentage of vacancies, out of the
total vacancies arising in a year in Class-II, specially declared
gazette, Class-III and Class-IV services/posts to which women
candidates are eligible to be appointed and which are filled up by
way of direct recruitment, shall be reserved for the women
candidates.
Category Women Men Total
(1) (2) (3) (4)
Physically
Handicapped .. 1% 2% 3%
Sports men .. 0.33% 0.67% 1%
Ex-Servicemen .. .. 3% 3%
General Candidates 18.33% 36.67% 55%
(2) Notwithstanding anything contained in sub-rule (1), reservation
made in favour of women candidates in excess of 30% of the total
vacancies in the Class-II, specially declared gazette, Class-III and
Class-IV services/posts, shall continue.
(3) If in any year, the vacancies reserved for a particular category of
women candidates specified under sub-rule(1) remain unfilled due to
non-availability of suitable women candidates belonging to the
respective category, the unfilled vacancies shall be filled up by
suitable male candidates of the same category:
Provided that in case of non-availability of suitable male candidate of
that category, the vacancy shall be filled up by women candidate of
general category".
As per the said rules, 33% of the vacancies are to be
filled up by women candidates.
3.4. It is contended that Petitioner is having all the
eligibility criteria for her selection and appointment as
// 10 //
against the post of Associate Professor in terms of the
eligibility criteria prescribed by the University Grants
Commission in its Regulation, 2018 vide Annexure-4.
Petitioner is also having all the eligibility criteria as
prescribed in the advertisement issued under Annexure-1.
But the University when issued the notice under Annexure-
5 by recommending private Opposite Party Nos.5 and 6 as
against both the vacancies for the post of Associate
Professor in the discipline of Chemistry and in the said
notice, it was indicated that since no women candidate was
found suitable, a male candidate was selected from UR
(Male) category, Petitioner challenging such action of the
University approached this Court in W.P.(C) No.19275 of
2021.
3.5. It was the stand of the Petitioner in the earlier writ
petition that since in the advertisement under Annexure-1,
out of 2 vacancies as against the post of Associate Professor
in the discipline of Chemistry, one post is reserved for UR
(Women) candidate, in view of the provisions contained
under the 1994 Rules, Petitioner should have been selected
as against UR (Women) category and that post could not
have been filled up by recommending Opposite Party No.5
who admittedly belongs to UR (Male) category.
// 11 //
3.6. It was also the stand of the Petitioner that since the
Petitioner was found suitable and was allowed to appear the
interview in terms of Annexure-3, the ground indicated in
Annexure-5 that no women candidate was found suitable is
not legal and justified.
3.7. It is contended that in the aforesaid writ petition a
detailed counter affidavit was filed by the Opposite Party
University. In the counter affidavit so filed by the
University, it was never the stand of the University that the
Petitioner since could not secure the required 50% cut off
mark, she was not found suitable as against the vacancy
meant for UR (Women) category and Opposite Party No.6
having been found eligible having secured more mark than
the Petitioner, he was recommended as against the said
vacancy as an UR (Male) category candidates. However,
taking into account the contentions raised by the Petitioner
before this Court that the post reserved for UR (Women)
category candidates could not have been filled up by a
candidate belonging to UR (Male) category only by taking
the plea that no suitable women candidate was found
suitable, this Court disposed of the writ petition vide order
dtd.09.09.2022. Subsequently, the order dtd.09.09.2022
was also modified vide order dtd.21.11.2022.
// 12 //
3.8. It is vehemently contended that since it was never the
stand of the University in the earlier writ petition that the
petitioner was not found suitable as she could not secure
the required 50% cut-off mark so fixed by the Selection
Committee, the rejection of the Petitioner's claim on that
ground vide the impugned communication issued on
19.04.2023 under Annexure-9 is not sustainable in the eye
of law.
3.9. To substantiate such stand that no such cut-off mark
was ever fixed, learned counsel for the Petitioner brought to
the notice of this Court the information provided by the
University in favour of one Dr. Suprava Nayak, who was
also a candidates in terms of the advertisement issued
under Annexure-1 for the post of Associate Professor in the
discipline Chemistry, vide Annexure-7 dtd.22.07.2020. In
the said information, it is contended that there was no
indication of cut-off mark so fixed in the proceeding of the
selection board. The information so provided under
Annexure-7 vide Cl.IV is quoted hereunder:-
"(iv) As per the decision of the selection board no women
candidates were found suitable. Hence, a male candidate
was selected for UR (W) category. There is no indication of
cut-off Mark in the proceedings of the Selection Board".
3.10. It is accordingly contended that since it was never the
case of the University that cut-off mark was fixed at 50% by
the Selection Board and the Petitioner having not secured
// 13 //
the said cut-off mark she was not selected, the ground on
which the claim of the Petitioner was rejected vide
Annexure-9 is not sustainable in the eye of law and
requires interference of this Court.
3.11. It is also contended that this Court while disposing
the writ petition vide order dtd.09.09.2022 so modified vide
order dtd.21.08.2022 clearly held that the University has to
relook the entire issue afresh taking into account the rules
i.e.1994 rules, which provides the reservation to the extent
of 33% in favour of the women candidates and the basis of
selection so prescribed in the advertisement
dtd.10.07.2019.
3.12. Learned counsel for the Petitioner also contended that
since the criteria for such selection as prescribed in the
Odisha Universities First Statute vide Schedule-A is to be
followed and in the said Schedule, nothing was indicated
with regard to fixation of any cut-off mark, the ground
taken by the University while rejecting the claim of the
Petitioner vide Annexure-9 is also not sustainable in the eye
of law.
3.13. It is also contended that Petitioner though is more
meritorious, but she has not been given the required mark
with regard to her teaching experience as well as research
// 14 //
publication. The selection board intentionally and
deliberately awarded less mark in favour of the Petitioner
with regard to teaching experience and research
publication.
The selection board intentionally and deliberately also
did not award any mark towards CCR performance
appraisal report while awarding such mark in favour of
Opposite Party Nos.5 & 6.
3.14. It is also contended that since neither in the
advertisement nor in the University First Statute vide
Schedule-A, such a cut-off mark was prescribed, the stand
taken by the Opposite Party-University while rejecting the
claim of the Petitioner under Annexure-9 by indicating that
the Petitioner since could not secure the 50% cut-off mark,
she was not found suitable cannot be accepted. Such a
stand taken by the University is also contrary to the stand
taken in Annexure-7.
3.15. In support of his aforesaid submission, learned
counsel for the Petitioner relied on a decision of the
Hon'ble Apex Court reported in the case of K.
Manjusree Vs State of Andhra Pradesh and
another, (2008) 3 SCC 512. Hon'ble Apex Court in
Paragraph-27 of the said judgment held as follows:
// 15 //
27. But what could not have been done was the
second change, by introduction of the criterion of
minimum marks for the interview. The minimum
marks for interview had never been adopted by
the Andhra Pradesh High Court earlier for
selection of District & Sessions Judges, (Grade II).
In regard to the present selection, the
Administrative Committee merely adopted the
previous procedure in vogue. The previous
procedure as stated above was to apply minimum
marks only for written examination and not for
the oral examination. We have referred to the
proper interpretation of the earlier Resolutions
dated 24-7-2001 and 21-2-2002 and held that
what was adopted on 30-11-2004 was only
minimum marks for written examination and not
for the interviews. Therefore, introduction of the
requirement of minimum marks for interview,
after the entire selection process (consisting of
written examination and interview) was
completed, would amount to changing the rules of
the game after the game was played which is
clearly impermissible. We are fortified in this view
by several decisions of this Court. It is sufficient
to refer to three of them -- P.K. Ramachandra
Iyer v. Union of India, Umesh Chandra
Shukla v. Union of India and Durgacharan
Misra v. State of Orissa.
3.16. Learned counsel for the Petitioner also relied on
another decision of the Hon'ble Apex Court in the case
of Goa Public Service Commission Vs. Pankaj Rane
and Others, (2022) 11 SCC 742. Hon'ble Apex Court
in Paragraph 23 to 28 of the said judgment held as
follows.
23. In this regard, we must notice that in the facts of
this case of the 1866 candidates who appeared in the
screening test/computer test, only 7 candidates which
included Respondents 1 to 3 cleared the test. The
number stood further reduced to 4 and which again
included Respondents 1 to 3. Therefore, when the
question arose as to how the interview should be
conducted, the Commission decided on 16-5-2017 to fix
26 marks out of 40 as cut-off marks. It no doubt works
out at 60% of the total marks in the interview segment.
Rules did not provide for a separate minimum for the
interview. The advertisement did not provide for a
separate minimum in the interview. It is almost a week
before the interview that the Commission took the
decision in this regard.
// 16 //
24. We have stated these facts only to highlight that
this is not a case where the Commission was faced
with the task of having to interview a very large number
of candidates. For 6 unreserved posts and 5 reserved
posts finally, only 4 emerged as candidates to be dealt
with at the final stage viz. the oral interview. This,
therefore, is distinguishable, in other words, from the
judgment relied upon by Mr Pratap Venugopal, learned
counsel for the appellant viz. M.P. Public Service
Commission . That was a case where this Court noted
that the appellant Commission therein noting the large
number of applications received from the General
Category candidates against four posts decided to call
only 71 applicants who had 7½ years of practice
although 188 applicants were eligible, in view of the
fact that under Section 8(3)(c) of the provisions
applicable in the said case, five years of practice as an
advocate or pleader of Madhya Pradesh was a
minimum requirement.
25. It was therefore, a case which though relied upon
by the appellant is distinguishable on facts. This is
apart from noticing that the appellant has not been able
to inform the Court as to whether there was a Rule in
the said case similar to Rule 12 as present in this case.
As far as Yogesh Yadav is concerned, this again is not
a case which involved a rule resembling Rule 12 of the
Rules. We further may also notice that in the said case
recruitment was carried out by the employer itself and
it was not done by the recruiting body which the
appellant is and which is limited by statutory rules
made under Article 309 of the Constitution.
26. Para 13 of Yogesh Yadav is extracted hereinbelow :
(SCC p. 628)
"13. The instant case is not a case where no minimum
marks are prescribed for viva voce and this is sought to
be done after the written test. As noted above, the
instructions to the examinees provided that written test
will carry 80% marks and 20% marks were assigned
for the interview. It was also provided that candidates
who secured minimum 50% marks in the general
category and minimum 40% marks in the reserved
categories in the written test would qualify for the
interview. The entire selection was undertaken in
accordance with the aforesaid criterion which was laid
down at the time of recruitment process. After
conducting the interview, marks of the written test and
viva voce were to be added. However, since a
benchmark was not stipulated for giving the
appointment, what is done in the instant case is that a
decision is taken to give appointments only to those
persons who have secured 70% marks or above marks
in the unreserved category and 65% or above marks in
the reserved category. In the absence of any rule on this
aspect in the first instance, this does not amount to
changing the "rules of the game". The High Court has
rightly held that it is not a situation where securing of
minimum marks was introduced which was not
stipulated in the advertisement, standard was fixed for
the purpose of selection. Therefore, it is not a case of
// 17 //
changing the rules of the game. On the contrary in the
instant case a decision is taken to give appointment to
only those who fulfilled the benchmark prescribed. The
fixation of such a benchmark is permissible in law. This
is an altogether different situation not covered
by Hemani Malhotra case.
27. Though the learned counsel for the appellant did
emphasise the said observations, we are of the view
that it is distinguishable at any rate having regard to
Rule 12 which we have already noticed which is
applicable to the facts of this case. In other words, we
would think that in the facts of this case, they are
closer to the facts in P.K. Ramachandra Iyer case and
the judgment following the same which we have
already noted. As far as Tej Prakash Pathak case is
concerned, it again did not specifically involve a rule
similar to Rule 12.
28. It is true that there is a distinction in the facts with
those in K. Manjusree . We notice that that was a case
where the requirement of minimum marks for interview
was made after the entire selection process consisting
of the written examination and interview was
completed and noticing the facts, the Court declared
that it would amount to changing the Rules after
process is completed. In this case, the stipulation as to
the minimum to be obtained in the interview was
announced prior to the holding of the interview.
However, we would think that this case must fall to be
decided on the principle which has been laid down
in P.K. Ramachandra Iyer and Durgacharan Misra for
the reasons which we have already indicated."
3.17. The decision of the Hon'ble Apex Court in the
case of Ramjit Singh Kardam and others Vs.
Sanjeev Kumar and Others (2020), 20 SCC 209 was
also relied on by the learned counsel for the Petitioner.
Hon'ble Apex Court in Paragraphs 33.1,33.2,45, 45.1 &
45.2 of the said judgment has held as follows-:
33.1. Whether the respondent writ petitioners who had
participated in the selection were estopped from
challenging the selection in the facts of the present
case?
33.2. Whether the respondent writ petitioners could
have challenged the criteria of selection applied by the
Commission for selection after they had participated in
the selection?
xxxx xxxx xxxx xxxx
// 18 //
45.The Division Bench of the High Court is right in its
conclusion that the selection criteria, which saw the
light of the day along with the declaration of the
selection result could be assailed by the unsuccessful
candidates only after it was published. Similarly,
selection process which was notified was never
followed and the selection criteria which was followed
was never notified till the declaration of final result,
hence, the writ petitioners cannot be estopped from
challenging the selection. We, thus, hold that the writ
petitions filed by the petitioners could not have been
thrown on the ground of stopped and the writ
petitioners could very well challenge the criteria of
selection applied by the Commission, which was
declared by the Commission only at the time of
declaration of the final result. We, thus, answer Points
1 and 2 as follows:
45.1. The writ petitioners, who had participated in the
selection are not estopped from challenging the
selection in the facts of the present case.
45.2. The writ petitioners could have very well
challenged the criteria of selection, which was declared
by the Commission only in the final result declared on
10-4-2010.
3.18. Making all such submission and relying on the
decisions as cited (supra), it is contended that the rejection
of the Petitioner's claim for her appointment as against the
post of Associate Professor in the discipline of Chemistry as
an UR (Women) category candidate vide order dated
19.04.2023 under Annexure-9 is not sustainable in the eye
of law and it requires interference of this Court with
passing of an appropriate order.
4. Mr. D. Mohapatra, learned counsel appearing for the
University on the other hand made his submission basing
on the stand taken by Opposite Party Nos.1, 3 & 4 in the
counter.
// 19 //
4.1. It is contented that though in the advertisement
issued under Annexure-1, one post of Associate Professor in
the discipline of Chemistry was reserved for UR (Women)
category candidate, but in the said advertisement it was
clearly indicated that in case of non-availability of suitable
women candidates the post shall be filled up by male
candidates of the same category.
4.2. It is accordingly contended that since the selection
board does not find the Petitioner suitable as against the
post in question, the post was recommended to be filled up
by a male candidate by the selection board under
Annexure-5. The said recommendation of the selection
board issued under Annexure-5, when was challenged by
the Petitioner before this Court in W.P.(C) No.19275 of
2021, this Court while disposing the writ petition vide order
dtd.09.09.2022 directed the University to relook the entire
issue afresh taking into account the rules and the
advertisement issued under Annexure-1.
4.3. It is contended that in terms of the said order and
after relooking the issue in all respect afresh, it was found
that the Petitioner has not been found suitable by the
Selection Board, as she failed to secure the required 50%
cut-off mark which was fixed by the Selection board.
Accordingly her claim was rightly rejected vide the
// 20 //
impugned communication issued on 19.04.2023 under
Annexure-9.
4.4. It is also contended that Section-21 of the University
Act, 1989 in the meantime has been repealed with
promulgation of Orissa University Amendment Act w.e.f.
04.09.2020. As per the said amended act, University is no
more authorized to recommend the name of the Teacher to
be appointed as faculty of the University and the said power
has now been vested with the Odisha Public Service
Commission.
4.5. It is also contended that after the matter was remitted
by this Court vide its order dtd.09.09.2022, the then Vice-
Chancellor of the University, who was the Chairman of the
Selection Board was requested by the University to apprise
about the criteria and modality followed while selecting the
candidate for the post of Associate Professor in the
discipline of Chemistry. The then Vice-Chancellor vide her
letter dtd.17.12.2022 under Annexure-A to the counter
since indicated that the Selection Board fixed the cut-off
mark at 50% and no women candidate including the
present petitioner since could not secure such cut-off mark
of 50%, no women candidate was found suitable.
Accordingly, the post in question was recommended to be
filled up by a male candidate of the same category.
// 21 //
4.6. It is contended that since the selection board fixed the
cut-off mark at 50% as opined by the Chairman of the
Selection Board vide Annexure-A and the Petitioner
admittedly having not secured the said cut-off mark, she
was not found suitable and accordingly recommendation
was made to fill up the said vacancy by a male candidate of
the said category. Such a recommendation to fill up the
post in question by a male candidate is in terms of the
advertisement issued under Annexure-1.
4.7. It is also contended with regard to selection to the
post of Professor in the Department of Education, when this
Court directed the University to declare the result of the
interview so conducted in terms of Advertisement issued on
10.07.2019 vide order dated 23.12.2020 in W.P.(C)
No.32266 of 2020, University sought for instruction from
the Govt. in the department of Higher Education. Opp.
Party no.1 vide letter dated 10.02.2021 under Annexure-B
intimated that in view of the repeal of Odisha Universities
(Amendment) Act, 2020 w.e.f. 04.09.2020, the teachers of
State Public University shall only be appointed by Odisha
Public Service Commission. It is accordingly contended that
in view of such clarification issued by Opp. Party No.1
under Annexure-B, University is not competent to provide
appointment to the petitioner, even if she is found eligible.
// 22 //
4.8. It is contended that since in terms of the earlier order
passed by this Court the entire thing was reassessed and
basing on the stand taken by the then Chairman of the
Board that the Petitioner could not secure the required cut-
off mark of 50%, she was not found suitable, Opposite Party
No.1 basing on such communication of the Chairman of the
earlier selection board, rejected the claim of the Petitioner.
It is accordingly contended that there is no illegality or
irregularity with regard to rejection of the Petitioner's claim
and it requires no interference.
5. Learned counsel appearing for the Opposite Party
Nos.5 & 6 also made their submission basing on the stand
taken in the counter affidavit so filed by them. While
supporting the stand taken by the University in its counter,
learned counsels appearing for the Opposite Party Nos.5 &
6 contended that Petitioner could not secure the required
cut-off mark so fixed by the selection board, in terms of the
stipulation contained in the advertisement. Accordingly
Selection Board vide Annexure-5 while recommending
Opposite Party Nos.5 &6, held that no suitable women
candidate was available. The selection board rightly made
the recommendation under Annexure-5 by recommending
Opposite Party No.5 as against the post meant to be filled
up from UR (Women) category candidates.
// 23 //
5.1. It is accordingly contended by the learned counsel
appearing for Opposite Party No.5 that since the Petitioner
could not secure the cut-off mark so fixed by the Selection
Board and he having secured more marks than the
Petitioner, he was rightly recommended and appointed and
accordingly no illegality has been committed by the
University in rejecting the claim of the Petitioner for her
appointment as against the vacancy meant for UR (Women)
category candidates.
6. Mr. S.K. Das, learned counsel for the Petitioner made
further submission with regard to the stand taken by the
University in its counter by filing a rejoinder affidavit. It is
contended that though under Rule-4 of the 1994 Rules, it is
clearly indicated that the post ear-marked for UR (Women)
category can be filled up by a male candidate, if there are
no eligible women candidates and the said provision was
also reflected in the advertisement issued under
Annexure-1, but the action of the selection board while
coming to the conclusion that no women candidate was
found suitable is not sustainable in the eyes of law and it
requires interference of this Court.
6.1. It is contended that since the selection in terms of
Annexure-1 was required to be conducted in accordance
with the Odisha Universities First Statute so prescribed
// 24 //
under Schedule-A, no cut-off mark could have been fixed by
the selection board as indicated in the impugned rejection
available at Annexure-9.
6.2. It is also contended that since no such cut-off mark
was ever fixed by the selection board as indicated by the
University under Annexure-7, the ground on which the
claim of the petitioner was rejected on remand of the matter
by this Court, is also not sustainable in the eye of law.
6.3. It is also contended that Petitioner while being found
unsuitable has been awarded 48 marks in the interview
while private Opposite Party No.5 has been awarded 56
marks and private Opposite Party No.6 has been awarded
57.5 marks.
6.4. It is further contended that the Petitioner
intentionally and deliberately was not awarded the required
mark with regard to her research publication and she has
also not been awarded the required mark for her teaching
experience.
6.5. It is contended that as per the Schedule-A, 10 marks
was provided with regard to teaching experience and for
research publication 15 mark was prescribed. Out of 15
marks so provided for research publication, 10 marks is for
publication of international journals and 5 marks is for
// 25 //
publication of national journals. Under Schedule-A no
such prescription was there with regard to how many
publications in the international journal are required to be
provided for award of 10 marks and how many research
publications in the national journal for award of 5 marks.
6.6. It is contended that along with her application so
submitted under Annexure-2, Petitioner provided the
required numbers of national and international journals
and accordingly out of 15 marks so prescribed she should
have been given the required marks with regard to
publication. Similarly with regard to teaching experience,
though the Petitioner provided teaching experience of 17
years, but out of total marks provided for such purpose at
10, Petitioner was only allowed 5 marks, which is not in
accordance with the provision contained in Schedule-A of
the First Statute Schedule.
6.7. It is contended that if the Petitioner would have been
awarded proper mark with regard to teaching experience
and research publication as well as CCR performance
appraisal report, the Petitioner also could have secured the
cut-off mark of 50%. However, it is contended that since
neither in the advertisement nor under Schedule-A there is
any provision to fix any cut-off mark and as reflected from
Annexure-7, no such cut-off mark was also fixed by the
// 26 //
selection board while conducting the selection in terms of
Annexure-1, the rejection of the Petitioner's claim that she
has failed to secure the cut-off mark and accordingly she
was not found suitable as against UR (Women) category in
terms of the advertisement as well as in terms of the
provisions contained under 1994 Rules while
recommending Opposite Party No.5 as against the said
vacancy is not sustainable in the eye of law.
6.8. It is accordingly contended that the Petitioner since is
having all the eligibility criteria and as per the provisions
contained under the First Statute vide Schedule-A she was
eligible as well as suitable, the recommendation of Opposite
Party No.5 as against the vacancy meant for UR (Women)
category candidates by holding that the Petitioner is not
suitable for such recommendation, is not sustainable in the
eye of law and requires interference of this Court.
7. I have heard Mr. S.K. Das, learned counsel for the
Petitioner, Mr. D. Mohapatra, learned counsel appearing for
the Opposite Party Nos.1, 3 and 4, Mr. N.K. Sahu, learned
counsel appearing for Opposite Party No.5 and Mr. C.R.
Mohapatra, learned counsel appearing for Opposite Party
No.6. On their consent, the matter was taken up for final
disposal at the stage of admission with due exchange of
pleadings.
// 27 //
8. Having heard learned counsel for the Parties and after
going through the materials available on record, it is found
that the University issued the advertisement to fill up
different teaching post in different Post Graduate
Department vide advertisement dtd.10.07.2019 under
Annexure-1. As found from the said advertisement as
against the post of Associate Professor in the discipline of
Chemistry, out of the two vacancy so indicated, one was
reserved for UR (Male) and another for UR (Women)
candidates.
8.1. It is found from the record that the Petitioner made
her application as against the vacancy meant for UR
(women) category. Petitioner as found from Annexure-2,
along with her application, not only produced all the
relevant documents in support of her qualification but also
submitted the required teaching experience for more than
17 years and the research publication as provided under
the Odisha Universities First Statute vide Schedule-A.
Though out of two vacancies, one was reserved for UR
(women) candidate and the selection board while holding
that no women candidate was found suitable,
recommended the name of Opposite Party No.5 as against
the vacancy meant for UR (Women) category vide Annexure-
// 28 //
5, the matter was challenged before this Court in W.P.(C)
No.19275 of 2021.
8.2. This Court after hearing learned counsel appearing
for the Parties, disposed of the matter vide order
dtd.09.09.2022 with a direction on the University to relook
the entire issue afresh and take into account the relevant
rules and the advertisement issued under Annexure-1.
This Court in Para-7 of the said order clearly indicated that
the Selection Committee is to relook the selection process
especially with respect to the selection of Associate
Professor.
8.3. It is also indicated in the said order that the
reservation for women candidates since flows from the
mandate of the Constitution of India, the said
Constitutional mandates has to be strictly followed.
8.4. It is also found from the record that in the said writ
petition, the University filed a detailed counter affidavit and
in the counter no such stand was ever taken that the
Selection Board did not find the Petitioner suitable as she
failed to secure the required cut-off mark of 50%. But it is
found from the impugned communication under
Annexure-9, the claim of the Petitioner in terms of the
earlier order passed by this Court has been rejected only on
// 29 //
the ground that the Petitioner has failed to secure the cut-
off mark 50%. Since in the earlier writ petition, it was
never the stand of the University that the Petitioner was not
selected as she could not secure the required 50% cut-off
mark, the said plea which has been taken while rejecting
the claim of the Petitioner vide Annexure-9, as per the
considered view of this Court is not sustainable in the eye
of law.
8.5. It is also found that Opposite Party No.1 while
rejecting the Petitioner's claim vide Annexure-9 simply
relied on the communication issued by the Chairman of
the Selection Board, who happens to be the earlier Vice
Chancellor of the University so issued under Annexure-A to
the counter affidavit. This Court after going through the
said Annexure finds that the Chairman of the earlier
selection board was also not sure with regard to fixation of
such cut-off mark of 50%. The view of the Chairman of the
earlier selection board reflected in Para-2 reads as follows:-
"2. As far as I remember the selection committee
unanimously decided that the candidate who secures 50 or
more marks in toto shall be considered as suitable for the
post".
8.6. Since it is found from the record that no such cut-off
mark was ever fixed, which is also fortified with the
information provided by the University, under Annexure-7
and the stand of the chairman of the selection board so
// 30 //
indicated in Para-2 of Annexure-A, it is the view of this
Court that the rejection of the Petitioner's claim on the
ground indicated in Annexure-9 is not sustainable in the
eye of law.
8.7. Taking into account the stand of the Petitioner that
the Petitioner was not awarded proper mark with regard to
teaching experience as well as research publication, this
Court while hearing the matter directed learned counsel
appearing for the University to provide the selection file
with regard to selection as against the post of Associate
Professor in the discipline of Chemistry. The same after
being produced by the learned counsel for the University
was also perused by this Court. On bare perusal of the
selection file, it is found that even though the Petitioner in
support of her teaching experience provided required
certificate showing her teaching experience at 17 years, but
the same was calculated at 10 years with award of only 5
marks out of the prescribed 10 marks.
8.8. It is also found that the Petitioner out of 10 marks
provided for research publication of international journals,
she has only been awarded 3 marks as against publication
in international journals and 1 marks as against
publication in five national journals. No mark has also been
awarded towards CCR appraisal in favour of the petitioner.
// 31 //
8.9. This Court after going through the selection file when
found that proper mark has not been awarded with regard
to Research Publication and Teaching Experience as well as
CCR Appraisal, the matter when listed on 18.10.2023, this
Court passed the following order:-
"1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. This matter was listed in order to clarify certain
queries with regard to award of mark to the candidates in
terms of the advertisement issued under Annexure-1. This
Court after going through the selection file so produced by
learned counsel for the University finds that for award of
mark in different heads finds that nothing has been indicated
with regard to the basis for awarding of mark towards
research publication and CCR appraisal. Nothing has also
been indicated as to how many publications in international
journal a candidate has to produce in order to get the
prescribed "10" marks and how many publications in
national journal to get the prescribed "5" marks. Similarly,
with regard to award of 859 mark for CCR appraisal, no
basis has been prescribed.
3. In such view of the matter, this Court directs learned
counsel appearing for the University to apprise this Court
about the method of award of mark with regard to research
publication and CCR
appraisal and the basis adopted by the Selection Committee
to award such mark.
4. As requested by Mr. D. Mohapatra, learned counsel for the
Petitioner, list this matter on 01.11.2023 under the heading
"to be mentioned".
5. The original selection file so produced by Mr. Mohapatra
learned counsel is returned with due acknowledgment for the
purpose of getting instruction as directed by this Court".
8.10. In terms of the order passed on 18.10.2023, learned
counsel appearing for the University produced relevant
record with regard to award of mark in favour of the
candidates with regard to Research Publication, Teaching
Experience as well as CCR Appraisal. This Court after
// 32 //
going through the records finds that no uniformity has been
maintained by the Selection Board in awarding marks
towards Research Publication, Teaching Experience as well
as CCR Appraisal. Nothing is also in the record with regard
to the basis for award of mark in favour of eligible
candidates in the aforesaid three categories i.e. Research
Publication, Teaching Experience as well as CCR Appraisal.
Therefore, it is the view of this Court that the Selection
Board has conducted the selection in a very haphazardly
manner and awarded marks in absence of any fixed
criteria.
8.10. On bare perusal of the marks awarded by the
Selection Board, it is also found that the Selection Board
has not awarded proper mark in favour of the Petitioner
towards teaching experience and research publication and
no mark has been awarded towards CCR appraisal. Had the
Petitioner been awarded proper mark she could have also
secured the cut-off mark so fixed at 50%.
8.11. Be that as it may, since no such cut-off mark was
ever prescribed either in the advertisement or in the First
Statute vide Schedule-A and no such stand having been
taken by the University while filing the counter in the
earlier writ petition in W.P.(C) No.19275 of 2021, the
ground on which the claim of the Petitioner has been
// 33 //
rejected that the Petitioner was not found suitable as she
has failed to secure the required 50% cut-off mark is not
sustainable in the eye of law in view of the decision of the
Hon'ble Apex Court in the case of K. Manjusree as cited
(supra).
8.12. Therefore, this Court is inclined to quash the
rejection of the Petitioner's claim on the ground indicated in
Annexure-9. While quashing the same, this Court held the
Petitioner suitable for her selection and appointment as
against the vacancy meant for UR women category for the
post of Associate Professor in the discipline of Chemistry.
This Court accordingly while holding so directs the
University to provide the appointment of the Petitioner as
against the post of Associate Professor in the discipline of
Chemistry in place of Opposite Party No.5. This Court
directs Opposite Party No.1 to comply the aforesaid
direction within a period of one (1) month from the date of
receipt of this order. However, it is observed that if the
Opposite Party No.5 can be adjusted as against any
available vacancy as an Associate Professor in the discipline
of Chemistry, necessary action be taken in this regard.
// 34 //
9. With the aforesaid observations and directions, the
Writ Petition stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 5th of December, 2023/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
