Sandeep Rout vs Union Of India & Ors
2023 Latest Caselaw 1122 Ori

                                       1


            IN THE HIGH COURT OF ORISSA AT CUTTACK


                         W.P (C) No.28280 of 2020

Sandeep Rout                        .....                                Petitioner
                                                        Mr. S.K. Ojha, Advocate

                                    Vs.

Union of India & Ors.               .....                         Opposite Parties
                                              Mr. C. Pradhan, Sr. Panel Counsel,
                                                                   Govt. of India


            CORAM:
               DR. JUSTICE B.R. SARANGI
               MR. JUSTICE B.P. SATAPATHY

                                            ORDER

02.02.2023

Order No. This matter is taken up through hybrid mode.

2. Heard Mr. S.K. Ojha, learned counsel appearing for the petitioner and Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India, appearing for the Union of India-opposite parties.

3. The petitioner has filed this writ petition seeking to quash the common order dated 07.10.2020 under Annexure-1 passed in O.A. Nos.270 & 278 of 2020, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack has dismissed the said O.As rejecting the claim of the petitioner for consideration of his candidature for recruitment to the post of Multi-Rehabilitation Worker (Physiotherapist) under All India Institute of Medical Sciences, Bhubaneswar (AIIMS).

4. Mr. S.K. Ojha, learned counsel appearing for the petitioner contended that an advertisement was issued on 05.05.2017 by the AIIMS, Bhubaneswar for recruitment of non-faculty posts (Group-

B) in various disciplines at AIIMS, Bhubaneswar on direct recruitment basis. The petitioner applied for the post of Multi- Rehabilitation Worker (Physiotherapist) under the discipline of Physio/Ortho/Yoga, but his application was not taken into consideration in view of the fact that he had not produced the required certificate registered with the Physiotherapy Council. Therefore, he approached the Central Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.270 of 2020, but the Tribunal, after due adjudication, vide common order dated 07.10.2020 dismissed the said O.A. rejecting his claim.

5. Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India, appearing for the Union of India-opposite parties contended that the petitioner's application for consideration for appointment to the post of Multi-Rehabilitation Worker (Physiotherapist) under All India Institute of Medical Sciences, Bhubaneswar (AIIMS) was defective one, as he had not submitted the certificate registered with the Physiotherapy Council. In absence of such document, which was mandatory requirement, the application was defective. It is further contended that even though the petitioner was given opportunity, the same was not complied with. As a consequence thereof, the candidature of the petitioner was rejected. Therefore, the Tribunal has not committed any illegality or irregularity in passing the order dated 07.10.2020 in O.A. Nos.270 & 278 of 2020 so as to cause interference of this Court. To substantiate his contentions, he has relied upon the judgment of the apex Court in Bedanga Talukdar v. Saifudullah Khan & Ors., AIR 2012 SC 1803.

6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that the AIIMS, Bhubaneswar issued an advertisement on 05.05.2017

for recruitment of non-faculty posts (Group-B) in its various disciplines on direct recruitment basis. The essential qualifications & experience for the post of Multi-Rehabilitation Worker (Physiotherapist) under the discipline of Physio/Ortho/Yoga are extracted hereunder:

"Essential qualifications & Experience:

Bachelor's Degree in Physiotherapy from a recognized Institute/University with 2 years experience.

Or Diploma in Rehabilitation with 5 years experience. Registered with the Physiotherapy Council".

Therefore, if a candidate satisfies the above requirement can make application for the post of Multi-Rehabilitation Worker (Physiotherapist). Though the petitioner satisfied the other requirements, but he did not have possessed the certificate registered with the Physiotherapy Council at the time of submission of application. Thereby, his application was lacking of the certificate registered with the Physiotherapy Council. When such defect was revealed, the opposite parties called upon the petitioner to produce such document, but he could not produce the same on the plea that he had applied to the Physiotherapy Council, Maharastra and due to intervention of Covid-19 pandemic, he received the same in 2021. Therefore, it is the admitted case of the petitioner that by the time he made application with the declaration that he had possessed the requisite qualification, he had not submitted the certificate registered with the Physiotherapy Council, which amounts to suppression of fact. More so, the application being defective one, the opposite parties should not have entertained the same, rather the opposite parties granted opportunity to the petitioner to submit the certificate, but the same was not complied with. Furthermore, as it appears from the advertisement, no relaxation clause is available to extend such

benefit to the petitioner. In absence of relaxation clause in the advertisement, the benefit of production of certificate registered with the Physiotherapy Counsel later on cannot be admissible.

7. Reliance has been placed on Bedanga Talukdar (supra), wherein the apex Court held that selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved.

8. The Tribunal, after due adjudication, in paragraph-21 of the order dated 07.10.2020 held as follows:

"21. Lastly, the applicants have sought for a direction to be appointed to the post after accepting their undertaking that the registration certificate will be furnished by them later on, particularly since the applicants have furnished provisional registration obtained from Maharashtra Physiotherapy Council in March, 2020. Action of the applicants to obtain registration in the year 2020 shows that they did not have registration certificate as on the date of submission of the online application as per the advertisement dated 5.5.2017 and hence, they were ineligible for the post of MRW as per the terms and conditions of the aforesaid advertisement. Obtaining provisional certificate in March, 2020 will not change the fact that they were ineligible to apply for the post of MRW since they did not have the registration with physiotherapy council as on the date of submission of the online application form. It is noted that there was no stipulation in the aforesaid advertisement that the provisionally selected candidates will be allowed time to produce the registration certificate although it was an eligibility criteria. In the light of law settled in the case of Bedenga Talukdar (supra), it was not permissible on the part of the respondents to allow any concession to the applicants, which are not as per the terms and conditions stipulated in the advertisement in question. Hence, we are unable to allow such relief to the applicants".

9. Thereby, this Court is of the considered view that the reasons assigned by the Tribunal in paragraph-21 of the order dated

07.10.2020 are well justified and the same do not require interference of this Court at this stage.

10. Therefore, the writ petition merits no consideration and the same is dismissed.

                                          (DR. B.R. SARANGI)
                                               JUDGE



Alok                                     (B. P. SATAPATHY)
                                                JUDGE