Sidheswari Mohanty vs State Of Orissa & Ors
2023 Latest Caselaw 1784 Ori

                 ORISSA HIGH COURT: CUTTACK

                    W.P(C) NO. 21082 OF 2017
                               AND
                    W.P(C) NO. 17872 OF 2017

      In the matter of applications under Articles 226 and 227
      of the Constitution of India.
                              ---------------

AFR In W.P(C) No.21082 of 2017 Sidheswari Mohanty ..... Petitioner

-Versus-

State of Orissa & Ors. ..... Opp. Parties

For Petitioner : Mr. B. Routray, Sr. Advocate along with M/s. S. Das, S.K.

                               Samal, S.P. Nath, S.D. Routray
                               and B.R. Pattanayak, Advocates

         For Opp. Parties :    Mr. A.K. Mishra,
                               Addl. Govt. Advocate
                               [O.Ps.1-4]

                               M/s. P. Prusty and G. Rout,
                               Advocates [O.P.No.5]

      In W.P(C) No.17872 of 2017
      Girija Kanta Rout        .....                Petitioner

                                   -Versus-
      Orissa Administrative
      Tribunal, Cuttack Bench,
      Cuttack & Ors.                    .....       Opp. Parties

         For Petitioner   :    M/s. S.K. Dash, S. Das, A. Sahoo
                               and P. Das, Advocates

         For Opp. Parties :    Mr. A.K. Mishra,
                                      // 2 //




                                 Addl. Govt. Advocate
                                 [O.Ps.1-6]

                                 Mr. J. Pattanaik, Sr. Advocate
                                 along with M/s. P. Prusty and G.
                                 Rout, Advocates
                                 [O.P.No.7]

        P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY

Date of Hearing: 20.02.2023 :: Date of Judgment: 27.02.2023

DR. B.R. SARANGI,J. W.P.(C) No.21082 of 2017 has been filed

by Sidheswari Mohanty seeking to quash the common

order dated 02.05.2017 passed in O.A. No.2028(C) of

2012 & batch under Annexure-9, by which the Orissa

Administrative Tribunal, Cuttack Bench, Cuttack has

quashed the selection of the petitioner for Live Stock

Inspector training, so far as Jajpur district is concerned,

pursuant to advertisement dated 16.01.2004 published

in Odia daily newspaper "The Samaj" under Annexure-1,

and further to issue direction to the opposite parties to

allow the petitioner to continue in the post of Live Stock

Inspector under the Jajpur district from the date of her // 3 //

appointment as per Annexure-3 extending all service

benefits in accordance with law.

Similarly, W.P.(C) No.17872 of 2017 has also

been filed by Girija Kanta Rout seeking to quash the

common order dated 02.05.2017 passed in O.A.

No.2046(C) of 2012 & batch under Annexure-1, by which

the Orissa Administrative Tribunal, Cuttack Bench,

Cuttack has quashed the selection of the petitioner for

Live Stock Inspector training and further to issue

direction or pass any other order as deemed fit.

2. Since both the writ petitions arise out of the

common order dated 02.05.2017 passed by the Orissa

Administrative Tribunal, Cuttack Bench, Cuttack in a

batch of Original Applications with similar cause of

action seeking to quash the said common order, they

were heard together and are disposed of vide this

common judgment.

3. Shorn off unnecessary details, the factual

matrix, which led to filing of the above noted two cases, // 4 //

is that the Director, Animal Husbandry & Veterinary

Service, Odisha, Cuttack issued an advertisement in

Odia daily newspaper "The Samaj" dated 16.1.2004 to fill

up some posts of Live Stock Inspector for Jajpur District,

pursuant to which the petitioners applied for the same

with other intending candidates including one Jatindra

Kumar Samal, who has been arrayed as opposite party

no.5 in W.P.(C) No.21082 of 2017 and opposite party

no.7 in W.P.(C) No.17872 of 2017. On being successful

in the selection process, which was strictly made on the

basis of mark secured in the academic career of the

candidates, the petitioners were called for an interview

and finally on the basis of marks and performance, the

petitioners along with other 10 (ten) candidates were

provisionally selected. The Chief District Veterinary

Officer, Jajpur, vide order no.1044 dated 17.10.2006,

invited objection from the general public within seven

days from the date of order. As no objection was

received, the petitioners were issued with appointment

orders indicating about their selection as Live Stock

Inspector, pursuant to which they joined and are till date // 5 //

continuing in the said post maintaining service record.

During the process of selection, Jatindra Kumar Samal-

opposite party no.5 in W.P.(C) No.21082 of 2017 and

opposite party no.7 in W.P.(C) No.17872 of 2017, whose

candidature was rejected for non-submission of relevant

certificates, in order to illegally stop the process of

selection filed O.A No.1227 (C) of 2004 and at his

instance two other Original Applications bearing O.A.

Nos.1269 (C) of 2004 and O.A No1500 (C) of 2004 were

filed, which were disposed of vide orders dated

14.07.2004 and 25.08.2004 with a direction to the

selection committee to examine the allegation of

malpractice and removal of the certificates of some

unsuccessful candidates before scrutiny to eliminate

some prospective candidates and to pass appropriate

order by disposing of the representation. Pursuant to

such orders of the Orissa Administrative Tribunal,

Cuttack Bench, Cuttack a detailed enquiry was

conducted by the Collector-cum-Chairman, Selection

Committee, Jajpur but the allegation of removal of

certificates from the applications of 197 applicants, out // 6 //

of total 597, whose candidatures were rejected during

the process of scrutiny, was not established. As a result,

the process of selection continued and vide order

no.364/Vet. dated 17.08.2004, order no.1204/Vet. dated

11.11.2004 and order no.1332/Vet. dated 17.12.2004

passed in compliance of the order of the Tribunal, the

Enquiry Officer rejected such allegation of malpractice or

removal of the certificates from the application forms

with the finding that no such required documents were

submitted by such unsuccessful candidates. Thereafter

only, the final order of appointment was issued in favour

of the petitioners and other successful candidates.

2.1 Pursuant to such order of appointment issued

by the Collector, Jajpur, the petitioners and other 10

(ten) candidates joined and continued in their service as

Live Stock Inspector at different places. Again, said

Jatindra Kumar Samal, being failed in his attempt, to

harass the petitioners and other successful candidates

and aggrieved by the detailed order no.364/Vet. dated

17.08.2004 to create hindrance on the smooth // 7 //

functioning of the petitioners and other appointees, filed

O.A. No 1860 (C) of 2006 and, thereafter, at his instance,

one unsuccessful candidate, namely, Santosh Kumar

Sethi filed O.A No. 1989 (C) of 2006 and one Manjusa

Manjari Prusty filed O.A No. 121 (C) of 2009 before the

Orissa Administrative Tribunal, Cuttack Bench, Cuttack

with a prayer to quash the entire selection of the

petitioners and other 10 (ten) candidates with false

allegation that such selection was made through

malpractice by removing their educational certificates

from the application forms. But finally the Tribunal, vide

order dated 21.04.2011, dismissed the aforesaid three

Original Applications filed by the unsuccessful

candidates with a clear finding that "no clinching

evidence regarding malpractice is noticed to merit

interference by the Tribunal".

2.2 During subsistence of adjudication of the

aforesaid three Original Applications, one of which was

filed by Jatindra Kumar Samal basing on the anonymous

letter as per order of the Director, Veterinary and Animal // 8 //

Husbandry, i.e., vide letter no.2093 dated 24.01.2007, an

administrative enquiry was conducted by the Joint

Director, AH&VS, Orissa, Cuttack in the office of the

Chief District Veterinary Officer, Jajpur to decide the

allegation on irregular appointment of the petitioners

along with 10 (ten) other candidates wherein all the 197

candidates, out of total 597 candidates, whose

candidatures were rejected in the process of scrutiny for

non-submission of different documents, were noticed

individually and of them although 129 candidates

attended the enquiry but 97 candidates filed their written

statement/affidavit supporting such allegation of

irregularity. However, after conclusion of the enquiry, the

Enquiring Officer submitted his enquiry report dated

31.01.2008 rejecting the allegation of the unsuccessful

candidates, but recommended for a vigilance

investigation if desired by the authority.

2.3 After dismissal of the aforesaid O.As, Jatindra

Kumar Samal filed W.P.(C) No.14703 of 2011 challenging

the correctness of the order passed by the Tribunal.

// 9 //

When the said matter was pending, the Director,

Veterinary and Animal Husbandry, Orissa directed for re-

enquiry of the said allegation by the Additional Secretary

and in this process, the newly appointed Enquiry Officer,

without issuing notice to any of the successful or

unsuccessful candidates or even recording the statement

of any of the parties or even examining any member of

the then Selection Committee or collecting any prima

facie materials regarding the alleged suspicious

involvement of one Khirod Chandra Jena, a Senior

Assistant attached to the office of the CDVO, Jajpur, on

his own assessment and on official discussion with the

present staff of the office of the Collector, Jajpur and the

office of CDVO, Jajpur, who were not in existence at the

time of such selection, and on verification of the copies

and documents already available as per the previous

enquiry, in a most illegal, mechanical and mala fide

manner came to a finding that the selection was not

made in a clean and fair manner and certificates of some

candidates were deliberately removed to facilitate less

percentage candidates and accordingly submitted // 10 //

enquiry report on 21.04.2012 with a recommendation to

cancel the selection of all the successful candidates, to

initiate departmental proceedings against the Member of

the Selection Committee and by not extending the

periodical Annual Contractual Appointment Order issued

in favour of 12 successful candidates, including the

petitioners, fresh selection be conducted basing on the

advertisement.

2.4. On receipt of the enquiry report dated

21.04.2012, opposite party no.1 issued termination order

dated 20.06.2012 which was communicated to the

petitioners vide office order dated 27.06.2012 by the

CDVO, Jajpur. Aggrieved by the termination order, the

petitioner in W.P.(C) No.21082 of 2017 approached the

Tribunal by filing O.A. No.2028(C) of 2012 and likewise

the petitioner in W.P.(C) No.17872 of 2017 filed O.A.

No.2046(C) of 2012 and being unsuccessful to obtain any

interim order of stay operation of the order of

termination, the petitioner in W.P.(C) No.21082 of 2017

approached this Court by filing W.P.(C) No.11870 of 2012 // 11 //

and this Court, vide order dated 16.07.2012, disposed of

the said writ petition targeting disposal of O.A.

No.2028(C) of 2012 and directing the opposite party-

authority to allow the petitioner in W.P.(C) No.21082 of

2017 to continue in the post till disposal of the O.A.

2.5. W.P.(C) No.14703 of 2011, preferred by

Jatindra Kumar Samal, was also disposed of by this

Court, vide order dated 07.05.2013, with the observation

that in view of the order of termination passed by the

State Government no order requires to be passed by this

Court and in this process finally, after hearing of the two

O.As. filed by the petitioners along with the other O.As

filed by other 10 (ten) successful candidates, including

O.A. No.3736(C)/2011 filed by Jatindra Kumar Samal,

the Tribunal, vide common order dated 02.05.2017,

dismissed all the O.As., including O.A. No.2028(C)/2012

and O.A. No.194(C)/2013 filed by the petitioner in

W.P.(C) No.21082 of 2017, and quashed the entire

selection list of Live Stock Inspector of Jajpur District

pursuant to advertisement dated 16.01.2004 with a // 12 //

further direction to the opposite party-authorities to

prepare a fresh selection list by giving preference to the

candidates by constituting a fresh selection board with

an enquiry as to whether documents annexed with the

application forms of any of the candidates were removed

or not and to conclude the entire selection process within

a period of four months and till that period not to disturb

the status of the candidates. Hence, these writ petitions.

3. Mr. B. Routray, learned Senior Counsel

appearing for the petitioner in W.P.(C) No.21082 of 2017

contended that the Tribunal has lost sight of the fact that

no allegation or any material was found against any of

the selected candidates, which can prove beyond

reasonable doubt that they have committed any kind of

malpractice or fraud, and the second enquiry report was

submitted on 21.04.2012 by the Addl. Secretary to Govt.,

Fisheries & ARD Department and in the meantime the

petitioner has already worked in the post of Livestock

Inspector for more than sixteen years. Therefore,

terminating the present petitioner without even issuing // 13 //

any show-cause or affording any opportunity of hearing

is in gross violation of the principles of natural justice. It

is further contended that the Tribunal has also not

considered the fact that when the Tribunal had already

in earlier Original Application concluded that there is no

clinching evidence regarding the alleged malpractice,

therefore it was not permissible for the Addl. Secretary to

Govt., Fisheries & ARD Department to initiate another

enquiry after a period of six years, unsettling the settled

position. It is also further contended that the Tribunal,

while passing the impugned order, has made out a third

case by holding that Project Director, DRDA, Jajpur

cannot be inducted as a party member of the Selection

Board and the same is in violation of the Rules, but the

Tribunal ignored the fact that in terms of the Amendment

Rules, vide Notification No. 590 dated 07.01.2000, a

nominee of the Director of Veterinary and Animal

Husbandry Service belonging to Director of Veterinary

Service Group-A must be a member and, therefore, in

terms of the Amendment Rules, the Project Director,

DRDA acted as a nominee on behalf of the Director, // 14 //

Veterinary and Animal Husbandry service. To

substantiate his contentions, he has relied upon the

judgment of the apex Court in Vikas Pratap Singh v.

State of Chattisgarh, (2013) 14 SCC 494 and Anmol

Kumar Tiwari v. State of Jharkhand, (2021) 5 SCC

424.

4. Mr. S.K. Dash, learned counsel appearing for

the petitioner in W.P.(C) No.17872 of 2017 reiterated the

contentions raised by Mr. B. Routray, learned Senior

Counsel appearing for the petitioner in W.P.(C) No.21082

of 2017. He further contended that there was direct

recruitment to the post of Live Stock Inspector, pursuant

to advertisement issued. But, on the basis of the report

of the Additional Secretary to the Government in

Fisheries and Animal Resources Development

Department, their services were terminated, after each of

the selected candidates had put six to seven years of

service, vide orders dated 20.06.2012, 23.06.2012 and

27.06.2012. While the said report was under challenge

in O.A. No.187 of 2013, by way of separate application, a // 15 //

joint application i.e. O.A. No.2046 of 2012 was preferred

against the order of termination, with the leave of the

Tribunal under Sub-section (4) of Section-4 of the

Administrative Tribunal Act, 1985. It is further

contended that the order of termination of all the 12

number of recruits could be passed in violation of the

principles of natural justice and, as such, no notice of

show-cause was issued to the petitioners before the

harshest decision was taken to terminate them from

service. Though specific averment on that score was

made in paragraph-6.18 of O.A. No.2046(C)/2012 was

made, the Tribunal did not at all take the same into

account. Therefore, the orders of termination have been

passed in violation of Article-311(1) of the Constitution of

India and the principles of natural justice. Considering

such action of the authority as illegal, the Tribunal

directed not to implement the same till publication of a

revised select list, on the ground that it is not known as

to whether the names of all the selected candidates

would appear in the revised list or not, while quashing // 16 //

the selection for the post of Live Stock Inspectors

training pursuant to advertisement dated 16.01.2004.

4.1 It is further contended that the selection was

challenged at different levels and on different occasions,

on the ground that in order to show favour to their own

candidates, candidatures of some of the applicants were

rejected by removing documents from their applications.

Earlier, in O.A. No.1860(C) of 2006 (preferred by opposite

party no.7 in W.P.(C) No.17872 of 2017, the applicant in

O.A. No.3736 of 2011), the Tribunal held in paragraph-

19 that as no clinching evidence regarding malpractice is

noticed to merit interference by the Tribunal, the claim

of the applicant cannot be allowed at this stage and

disposed of the said O.As. as not allowed. With regard to

the merit of the report of the Additional Secretary to the

Government in Fisheries and Animal Resources

Development Department, at the bottom of paragraph-12

of the impugned judgment, the Tribunal held that the

report reveals that selection has not been made fairly

which means either the candidates have played fraud in // 17 //

securing the appointment or the selection board has not

made selection in accordance with the rule to favour

their own candidates. It is further contended that the

ultimate conclusion in paragraph-14 of the impugned

judgment reveals that the Tribunal concluded that

nothing has been shown to indicate that any of the

selection candidates played fraud or misrepresented in

any manner, so as to secure an appointment. But the

Tribunal held that the entire selection is vitiated since

the selection committee was not constituted in

accordance with the rules and consequentially dismissed

the O.A. Therefore, it is contended that the order so

passed by the Tribunal cannot be sustained in the eye of

law and the same has to be quashed.

4.2 In support of his contentions, Mr. Dash,

learned counsel appearing for the petitioner in W.P.(C)

No.17872 of 2017 relied upon the judgment of the apex

Court in the case of Union of India (UOI) and Ors. v.

Somasundaram Viswanath and Ors., AIR 1988 SC

2255.

// 18 //

5. Mr. A.K. Mishra, learned Additional

Government Advocate appearing for the State-opposite

parties, substantiating the order of termination,

contended that even if there is no fraudulent act either

on the part of the petitioners or on the part of the

selection committee, but contended that the selection

having been conducted de hors the rules by constituting

a committee, the same cannot be sustained in the eye of

law and, thereby, justified the order passed by the

Tribunal. Therefore, the writ petitions should be

dismissed.

6. Mr. Jagannath Patnaik, learned Senior

Advocate appearing along with Mr. P. Prusty, learned

counsel appearing for Jatindra Kumar Samal, who has

been arrayed as opposite party no.5 in W.P.(C) No.21082

of 2017 and opposite party no.7 in W.P.(C) No.17872 of

2017, contended that selection to the post of Live Stock

Inspector had not been made in accordance with

statutory rules and more importantly the selection board

was not constituted in accordance with the rules, for // 19 //

which the entire selection is vitiated and, as such, is

liable to be quashed and direction should be issued to

the State-opposite parties to prepare a fresh selection list

following statutory rules giving preference to the

candidates as provided under Rule 6(d), after

constituting a fresh selection board as per Rule-8(1), and

proceed to select the candidates for Live Stock Inspector

training and such action to be taken within a period of

four months. It is further contended that any action

taken by the authority in violation of statutory provisions

is constitutionally illegal and the same cannot be

claimed to have any sanctity in law. It is further

contended that the decision of the selection committee

can be interfered with on limited grounds when there is

illegality or material irregularity in constitution of

committee or its procedure vitiates selection and proved

mala fide affecting the selection. It is further contended

that without following due process of law or rules for

appointment did not confer any right on appointees that

the Court cannot direct their absorption or regularization

or re-engage and making permanent. To substantiate his // 20 //

contentions, he has relied upon the judgments of the

apex Court in Secretary, State of Karnataka & Ors.

v. Umadevi (3) & Ors., (2006) 4 SCC 1; S. S. Sodhi v.

State of Punjab, (1990) 2 SCC 694; Biswa Ranjan

Sahoo v. Sushanata Kumar Dinda (Civil Appeal

No.9158 of 1996 arising out of SLP(C) No.13684 of 1996

(CC-2066 of 1996) disposed of on 08.05.1996); and

Union of India v. O. Chakradhar, AIR 2002 SC 1119.

7. This Court heard Mr. B. Routray, learned

Senior Advocate appearing for the petitioner in W.P.(C)

No.21082 of 2017; Mr. S.K. Dash, learned counsel

appearing for the petitioner in W.P.(C) NO.17872 of

2017; Mr. A.K. Mishra, learned Additional Government

Advocate appearing for the State-opposite parties in both

the writ petitions and Mr. J. Patnaik, learned Senior

Advocate appearing along with Mr. P. Prusty, learned

counsel appearing for Jatindra Kumar Samal, who has

been arrayed as opposite party no.5 in W.P.(C) No.21082

of 2017 and opposite party no.7 in W.P.(C) No.17872 of

2017, in hybrid mode. Pleadings have been exchanged // 21 //

between the parties and with the consent of learned

counsel for the parties, both the writ petitions are being

disposed of finally at the stage of admission.

8. On careful appraisal of the materials available

on record, including the orders impugned herein, this

Court finds that pursuant to an advertisement published

on 16.01.2004 in Odia daily newspaper "The Samaj" for

filling up of the posts of Live Stock Inspector for Jajpur

District, the petitioners submitted their applications. The

selection for the posts of Live Stock Inspector training is

conducted under the Odisha Non-Gazette Veterinary

Technical Service (Recruitment of Condition of Service)

Rules, 1983 (for short "Rules, 1983"). As per Rule-5,

direct appointment to the posts in the cadre of Live Stock

Inspector shall be made by the Director in order of merit

out of the list of candidates successfully completed the

training. Rule-6 provides the eligibility of the candidates

to undergo Live Stock Inspectors training. As per Rule-

6(d), which was amended vide notification dated

19.09.1997, the candidates must have passed // 22 //

Intermediate in Science or +2 Science or Higher

Secondary (Science) or such other equivalent

examination or +2 vocational courses in the field of

Animal Husbandry/Dairy/Poultry/Meat/Animal

Production from recognized educational Institution

/Board/Council/University. Vide notification dated

7.1.2000, Rule-7 was amended reconstituting the

selection board, where the Collector of the concerned

district has been made as the Chairman, a nominee of

the Director of Veterinary and Animal Husbandry

Services belonging to C.V.S. Grade-A as the Member, the

District Welfare Officer is another Member and the

CDVO of the concerned district as Member Convenor.

Again the Rules were amended vide notification dated

30.05.2011 substituting Rule-6(d) with the following

provision:-

"4 In the (i) said rules, In rule-6, first provision to clause (d) shall be substituted by the following proviso, namely:-

"Provided that candidates who have passed +2 vocational Course in the field of Animal Husbandry/Diary/Poultry/Meat/animal Production from a recognized educational Institution /Board/Council/University shall be given first preference."

// 23 //

Provided further that Gomitras having +2 Science qualification with satisfactory performance in Artificial Insemination (A.I) activities for three years shall be given second preference; and

(ii) the word 'further' used in the existing 2nd proviso shall be substituted by the word "also"

9. The advertisement was issued prescribing

educational qualification as follows:-

The candidates who have passed the +2 vocational courses shall be given first at the time of selection. Then the candidates who have passed +2 Sciences with TRYSEM training and +2 sciences with layman Inseminator training shall be considered. After the above categories of candidates are exhausted, then the +2 science candidates shall be selected in order of their merit, selection shall be made only on the basis of career marks obtained in HSC examination,+2 science vocational courses in dairy, Poultry, Meat and AH/Animal Production and then in +2 Science courses, TRYSEM/Layman Inseminator trained candidates who do not possess +2 science qualification will not be taken for consideration.

10. In the above backdrop, the following issues

are formulated for an effective adjudication of the case:-

(i) Whether the selection to the posts of Live Stock Inspector has been made in accordance with rules governing the field?

(ii) Whether any malpractice or irregularity was committed in the selection process // 24 //

as per the enquiry report of the Addl. Secretary to the Government in Fisheries and ARD Department?

(iii) Any other relief the petitioners are entitled to.

11. Issue No.(i)

On perusal of records and on scrutiny of the

counter affidavit filed by the State, it appears that as per

the amendment to the Rules, 1983, vide Notification

No.590 dated 7.1.2000, the Chief District Veterinary

Officer (SDVO) of the concerned district is the appointing

authority and the selection board shall be constituted

comprising of (a) the Collector of the concerned district

as Chairman; (b) a nominee of the Director of Animal

husbandry Veterinary Service belonging to Director of

Veterinary service Group-A as the Member; (c) District

Welfare Officer as another Member; and (d) the CDVO of

the concerned district as Member Convener. But it

appears from the selection file that the selection

committee was comprised of the following members:-

(1) Collector, Jajpur;

(2) PD, DRDA, Jajpur;

(3) District Welfare Officer;

// 25 //

(4) Deputy Director, Animal Husbandry Odisha;

and (5) CDVO, Jajpur.

The induction of PD, DRDA, Jajpur, as a Member of the

selection Board is de hors the rules. Though

subsequently an affidavit was filed stating by virtue of an

executive instruction, PD, DRDA, Jajpur has been made

as a Member of the selection committee, but that ipso

facto cannot change the rules, which have been framed

under Article 309 of the Constitution of India without

making amendment thereof. As such, the rules have not

made any provision for induction of any of the members.

12. In S. S. Sodhi (supra), the apex Court held

that any order or action done by authority in violation of

statutory provision is constitutionally illegal and this

cannot be claimed any sanctity in law. Statutory

authority cannot ignore statutory provisions rather they

required strict adherence. If statute provides a thing to

be done in a particular manner and no other manner and

following other course is not permissible.

// 26 //

13. In Dr. Krushna Chandra Sahu v. State of

Orissa, AIR 1996 SC 352, the apex Court held that it is

basically function of rule making authority to provide

basis of selection. Selection committee has no inherent

jurisdiction to lay down the norms for selection nor can

such power assured by implication. Selection

Committee/Board have no jurisdiction to lay down any

standard or basis of selection as it would amount to lay

down any standard or basis of selection as it would

amount to legislating a rule of selection.

14. In Umadevi (3), mentioned supra, the apex

Court held that without following due process of law or

rules for appointment did not confer any right on

appointees that the Court cannot direct their absorption

or regularization or re-engage and making permanent

unless appointment in terms of relevant rules after

completion amongst qualified persons, the same would

not confer any right on appointee.

15. In B.S. Vadera v. Union of India, AIR 1969

SC 118, the Constitution Bench of the apex Court held // 27 //

that the proviso to Article 309 clearly lays down that any

rules so made shall have effect subject to the provisions

of any such Act. The clear and unambiguous expressions

used in the Constitution must be given their full and

unrestricted meaning, unless hedged-in by any

limitations. The rules, which have to be subject to the

provisions of the Constitution, shall have effect subject to

the provisions of any such Act. That is, if the appropriate

Legislature has passed an Act under Article 309, the

rules framed under the proviso will have effect subject to

that Act; but in the absence of any Act, of the

appropriate Legislature, on the matter, the rules, made

by the President, or by such person as he may direct, are

to have full effect, both prospectively, and,

retrospectively. In other words, the rules, unless they

can be impeached on grounds such as breach of Part-III,

or any other Constitutional provision, must be enforced,

if made by the appropriate authority. Therefore, it is

construed that the Rules framed under the proviso to

Article 309 of the Constitution of India is legislative in

character. The same view has been taken by the apex // 28 //

Court consistently in subsequent judgments in the case

of K. Nagaraj & Ors. Etc. Etc v. State Of Andhra

Pradesh & Anr., AIR 1985 SC 551, Bhakta Rame

Gowda and Ors. v. State of Karnataka and Anr., AIR

1997 SC 1038, and in the case of Raj Kumar v. Shakti

Raj, AIR 1997 SC 2110.

16. The apex Court also held in the case of Union

of India v. Madras Telephone SC & ST Social

Welfare Association, (2009) 9 SCC 71 that the

controversy between the parties centers round a question

as to how the selection list has to be drawn up for the

purpose of promotion to the post of Assistant Engineer

from the post of Junior Engineer in Tele-communication

Circles. It may be stated that prior to 1966, the Junior

Engineers were being designated as Engineering

Supervisors Telecom/Wireless Supervisors Telecom.

Before the Telegraph Engineering Service Class II

Recruitment Rules, 1966 framed in exercise of powers

conferred by the proviso to Article 309 of the

Constitution of India came into force, the promotion from // 29 //

the post of erstwhile Engineering Supervisor Telecom to

the post of Assistant Engineer was being made in

accordance with the instructions contained in paragraph

206 of the Post and Telegraph Manual Volume IV. The

said instructions were obviously the executive

instructions, which governed the field in the absence of

statutory rules. Thereby, the administrative instructions

contrary to the statutory provision is liable to be struck

down. The same view has been taken by the apex Court

in Ratan Kumar Tandon & Ors v. State Of Uttar

Pradesh, AIR 1996 SC 2710; Sreenivasa Reddy and

Ors. v. Govt. of A.P. and Ors., AIR 1995 SC 586, C.L.

Verma v. State Of M.P. and Anr., AIR 1990 SC 463.

17. In Nelson Motis v. Union of India and Anr.,

AIR 1992 SC 1981 the apex Court held that the meaning

of an enactment is plain and effect must be given to such

meaning irrespective of consequences. Similar view has

also been taken in the case of State of Maharashtra

and Ors. v. Nanded Parbhani Z.L.B.M.V., Operator

Sangh, 2000 (2) SCC 69.

// 30 //

18. In Somasundaram Viswanath (supra), the

apex Court had taken into consideration as to whether

by reason of absence of one of the members of the

Departmental Promotion Committee (DPC) at a meeting

convened for the purpose of making recommendation

regarding the promotion of officers to higher post in

service under the Government of India, the

recommendation made by the DPC at the meeting would

become invalid. While answering the question, it was

held by the apex Court that the proceedings of the DPC

at its meeting held on 07.08.1986 are not invalid for the

above reason. But the ratio of the said case has no

application to the present context, as the said case is

dealt with the recommendation of the DPC, whereas the

case at hand is dealt with recruitment where a selection

committee in accordance with the rules was to be

constituted. In absence of the proper committee under

the rules any selection made cannot be sustained in the

eye of law.

// 31 //

19. In view of aforementioned settled position of

law laid down by the apex Court, since the selection of

the petitioners have been done de hors the rules,

compliance of the principles of natural justice is not

mandatory. Thereby, the selection made by the

committee is de hors the rules. Issue no.(i) is answered

accordingly.

20. Issue no.(ii)

In view of the allegation of malpractice and

irregularity in the matter of selection to the posts of Live

Stock Inspector, an enquiry was conducted by the Addl.

Secretary to the Government in Fisheries & ARD

Department. It is candidly admitted that out of total 597

applications, 197 were rejected and it is alleged that

relevant documents were removed from those

applications in order to make way or to favour/

accommodate the candidates of their choice. It appears

from the report that selection was made in violation of

the recruitment rules, inasmuch as preference was not

given to the candidates as per rules basing on their // 32 //

qualification. Allegation was also made that selection was

done by showing favoritism to one Swarna Prava Jena,

who is the daughter of one Khirod Chandra Jena working

as U.D Clerk in the office of the CDVO, Jajpur. Therefore,

the allegation of mala fide was raised, but fact remains

on such ground her selection cannot be negative to the

selection process, even though her father was involved in

the process of selection and had got an understanding in

the selection of his daughter. The enquiry report

submitted by the Addl. Secretary to Government in

Fisheries and ARD Department justifies the allegation

that the selection was not made fairly.

20.1 In view of the provisions contained in Rule-6

(d), first preference is to be given to candidates with +2

vocational course, who have passed +2 vocational course

in the field of Animal Husbandry/Veterinary/Poultry/

Meat/Animal Production from a recognized educational

institution/Board/Council/University and Gomitra

having +2 Science qualification with satisfactory

performance in artificial TRYSEM activities for three // 33 //

years shall be given second preference. It appears from

the report of the Addl. Secretary that out of 197

applications which were rejected, 12 candidates had

passed +2 vocational courses. On the other hand, four

candidates have been selected who had only +2 Science

qualification. It also appears that the marks obtained in

HSC and +2 Science have also been taken into

consideration, but the statutory rules do not provide for

taking into consideration the marks secured in any

examination other than as provided in Rule-6(d).

Thereby, the procedure adopted for selection of

candidates is in violation of the statutory rules. It is well

settled in law that any selection made de hors the rules is

illegal. So far as fraud is concerned, nothing has been

placed on record to substantiate the same that any of the

candidates, who have been selected, had played fraud or

misrepresented in any manner, so as to secure an

appointment, but it is made clear that the selection

which has been made is not in accordance with the

statutory rules and, more so, the selection committee so

constituted was not in accordance with the rules.

// 34 //

Therefore, the entire selection is vitiated and is liable to

be quashed.

20.2 In Shrisht Dhawan v. Shaw Bros, AIR 1992

SC 1555, the apex Court held that fraud avoids all

judicial acts, ecclesiastical or temporal. It is further held

that fraud and collusion vitiate even the most solemn

proceedings in any civilized system of jurisprudence. It is

a concept descriptive of human conduct. The ratio

decided by the apex Court in various cases is that

dishonesty should not be permitted to bear the fruit and

benefit those persons, who have frauded or

misrepresented themselves. In such circumstances, the

Court should not perpetuate the fraud by entertaining

petitions on their behalf.

20.3 In Union of India v. M. Bhaskaran, AIR 1996

SC 686, the apex Court relying upon the earlier

judgment in Vizianagram Social Welfare Residential

School Society v. M. Treipura Sundari Devi, 1990 SC

(L&S) 520, observed (M. Bhaskaran case SCC 104) "if by

committing fraud any employment is obtained, the same // 35 //

cannot be permitted to be countenanced by a Court of

law as the employment secured by fraud renders it

voidable at the opinion of the employer".

20.4 Since this Court has already given a finding

that no fraud has been played, therefore, the ratio

decided by the apex Court in Shrisht Dhawan and M.

Bhaskaran (supra) cannot have any application to the

present case. But fact remains, the selection and

appointment has been made in gross violation of the

rules. Therefore, if any appointment has been made in

violation of the rules, the entire selection is vitiated.

Issue no.(ii) is answered accordingly.

21. Issue No.(iii).

The case of Vikas Pratap Singh (supra),

relates to the recruitment process for the posts of

Subedars, Platoon Commanders and Sub-Inspectors,

where the examination was conducted and evaluation

was made and in the process of evaluation, illegalities

were found to the extent that eight questions and model

answers of another set of questions found incorrect.

// 36 //

Consequently, re-evaluation was made and a revised

select list was published. Then question was raised

whether action of the authority is arbitrary or not. While

answering the same, the apex Court held that rules

provided for deletion of incorrect question and awarding

of marks thereof on pro rata basis. Therefore, marks of

eight objective type incorrect questions awarded on pro

rata basis while model answers of another eight

questions were re-evaluated on the basis of correct model

answers and, thereby, held that no illegality can be said

to have crept in if irregularities in evaluation are

corrected by re-evaluation and undeserving select

candidates identified and replaced with deserving

candidates. Therefore, no prejudice was caused by re-

evaluation to the candidates selected in revised select

list. Thereby, the apex Court held that the error

committed by the authority in the matter of evaluation of

the answer scripts could not be attributed to the

candidates as they have neither been found to have

committed any fraud or misrepresentation in being

appointed qua the first merit list nor has the preparation // 37 //

of the erroneous model answer key or the specious result

contributed to them. Had the contrary been the case, it

would have justified their ouster upon re-evaluation and

deprived them of any sympathy from the Supreme Court

irrespective of their length of service. Thereby, held that

the candidates, who have successfully undergone

training and are efficiently serving the State for more

than three years and undoubtedly their termination

would not only impinge upon the economic security of

the candidates and their dependants but also adversely

affect their careers. This would be highly unjust and

grossly unfair to the candidates, who are innocent

appointees of an erroneous evaluation of the answer

scripts. However, their continuation in service should

neither give them any unfair advantage nor cause undue

prejudice to the candidates selected qua the revised merit

list and thereby, directed the State to appoint the

petitioners therein in the revised merit list placing them

at the bottom of the said list. The candidates who have

crossed the minimum statutory age for appointment

shall be accommodated with suitable age relaxation.

// 38 //

22. In Anmol Kumar Tiwari (supra), the apex

Court held that Reinstatement/Back Wages/Arrear-

Reinstatement-Parity-Direction to reinstate petitioners

whose services were terminated because of errors on

selection process finding that though they were

beneficiaries of irregular select list, but petitioners were

not responsible therefor and were appointed after

completion of training and had worked for some time

23. In Biswa Ranjan Sahoo (supra), the apex

Court held that enormity of malpractices in the selection

process regarding appointment of Chargemen 'B' Grade

in Mechanical and Electrical Division in the Railway, no

notice is required to be issued to the persons affected

and they need not be heard. The Tribunal was right in

not issuing notice to the persons, who are said to have

been selected and given appointment. The procedure

adopted in the process of selection is in flagrant breach

of the rules offending Articles 14 & 16 of the

Constitution.

// 39 //

24. In O. Chakradhar (supra), the apex Court

held that recruitment was made by the Railway

Recruitment Board. Enquiry was held by CBI in the

matter of selection. Widespread irregularities were found

in the entire selection process and hence the entire

selection was cancelled and the services of the selectees

were terminated. The report of the CBI shows that whole

selection smacks of mala fide and arbitrariness. All

norms are said to have been violated with impunity at

each stage viz. right from the stage of entertaining

applications, with answer sheets while in the custody of

Chairman in holding typing test, in interview and in the

end while preparing final result. In such circumstances,

it may not be possible to pick out or choose any few

persons in respect of whom alone the selection could be

cancelled and their services in pursuance thereof could

be terminated. The illegality and irregularity are so

intermixed with the whole process of the selection that it

becomes impossible to sort out right from the wrong or

vice versa. The result of such a selection cannot be relied

or acted upon. It is not a case where a question of // 40 //

misconduct on the part of a candidate is to be gone into

but a case where those who conducted the selection have

rendered it wholly unacceptable. Guilt of those who have

been selected is not the question under consideration but

the question is, could such selection be acted upon in

the matter of public employment? It was not possible to

issue any individual notice of misconduct to each

selectee and seek his explanation in regard to the large

scale widespread and all pervasive illegalities and

irregularities committed by those who conducted the

selection. Termination of services of selectees could not

therefore be faulted on ground of want of individual show

cause notice.

25. Thereby, applying the above principles to the

present case, if a rule framed under proviso to Article

309 is clear in its language, on plain reading of the same

if interpretation is given, then any action taken de hors

the rules has to be struck down. As a consequence

thereof, since the selection committee had been

constituted contrary to the rules, any selection made by // 41 //

it cannot be sustained in the eye of law. Any subsequent

executive instructions issued cannot supplement or

supplant the provisions of the rules, which are purely

statutory in nature, unless the same is incorporated by

way of amendment to the rules itself. Therefore, the

constitution of the selection committee relying on the

executive instructions and any selection made by such

committee cannot be sustained being de hors the rules

framed by the authority, which is statutory in nature. As

a consequence thereof, the selection of the petitioners

being de hors the rules governing the field, the same

cannot be sustained. As a result of which, the conclusion

arrived at by the Tribunal in the order impugned is well

justified, which does not require any interference by this

Court at this stage.

26. In view of facts and law, as discussed above,

since the selection to the post of Live Stock Inspector,

pursuant to advertisement dated 16.01.2004, was made

de hors the rules governing the field, the same is liable to

be quashed and the Tribunal has rightly done so.

// 42 //

Therefore, while upholding the impugned orders of the

Tribunal, this Court directs the opposite party-

authorities to prepare a fresh selection list on the basis

of applications submitted, pursuant to the advertisement

dated 16.01.2004, in accordance with statutory rules

giving preference to the candidates as per Rule-6(d) of the

Rules, 1983, after constituting a Selection Board, as per

Rule-8(1) of the Rules, 1983. As such, the entire action

shall be taken within a period of four months from the

date of receipt of this judgment. While carrying out the

aforementioned directions, the opposite party-authorities

shall ensure that the candidates, who had been selected

and whose names would appear in the revised select list,

the impugned orders of termination shall not be

implemented against them till then and shall be given

effect to only in respect of candidates whose names do

not find place in the list, and all the selected candidates

will continue till then and their appointment shall be

treated to be on ad hoc basis. However, the candidates

whose names were appearing in the original selection list

will get service continuity as well as other financial // 43 //

benefits and the newly recruited candidates as per the

revised selection list will only get notional benefit from

the date of initial appointment like other selected

candidates.

27. With the above observations and directions,

both the writ petitions are disposed of. However, there

shall be no order as to costs.

                                            (DR. B.R. SARANGI)
                                                  JUDGE


G. SATAPATHY, J.         I agree.

                                             (G. SATAPATHY)
                                                  JUDGE




        Orissa High Court, Cuttack
        The 27th February, 2023, Alok