Orissa High Court
Sourav Rout And Another vs The Odisha Legislative Assembly on 19 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31988 of 2021
An application under Article 226 and 227 of the Constitution of
India.
Sourav Rout and another .... Petitioners
-versus-
The Odisha Legislative Assembly, .... Opposite Parties
Bhubaneswar and others
For Petitioners : M/s. S. Mishra, S. Mohapatra and
B.S. Swarnakar
For Opp. Parties : Mr. S. Palit, Sr. Advocate, A.
Kejriwal, A.Parija and S. Bose for
O.P. No.1
W.P.(C) No.6171 of 2022
Satya Narayan Maharana .... Petitioner
-versus-
The Odisha Legislative Assembly, .... Opposite Parties
Bhubaneswar and others
For Petitioner : M/s. S.K. Das, P.K. Behera and
N. Jena
For Opp. Parties : Mr. S. Palit, Sr. Advocate, A.
Kejriwal, A.Parija and S. Bose for
O.P. No.1
M/s. S. Mishra, S. Mohapatra and
B.N. swarnakar, Advocate for
// 2 //
Opposite Party Nos.2 and 3
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 10.05.2023 | Date of Judgment : 19.05.2023
A.K. Mohapatra, J.
W.P.(C) No.31988 of 2021
1. The present writ application has been filed by one of the selected
candidates for the post of Reporter in Odisha Legislative Assembly with
a prayer for a direction to the Opposite Party No.1 to issue appointment
order in favour of the petitioners for the post of Reporter as per merit
list/select list as recommended by the Examination Committee as well as
Assembly Secretariat.
W.P.(C) No.6171 of 2022
2. The present writ application has been filed by the unsuccessful
candidates, who had applied for the post of Reporters that was advertised
by Odisha Legislative Assembly, challenging the Advertisement dated
26.01.2021 to fill up seven posts of Reporters in Odisha Legislative
Assembly. On perusal of the writ application, it appears that the
petitioner has prayed for quashing of the entire selection process and also
the selection of the Opposite Party Nos.2 and 3pursuant to the
// 3 //
advertisement under Annexure-1 for a further direction to Opposite Party
No.1 to hold a fresh selection process and in the event the petitioner is
found suitable, he may be appointed as a Reporter with all consequential
service and financial benefits.
3. Since the above noted two writ applications have been filed by two
different candidates i.e. one by selected candidates in W.P.(C) No.31988
of 2021 for a direction to appointment him as a Reporter and the other
one i.e. W.P.(C) No.6171 of 2022 by unsuccessful candidate, who was
not selected by the Examination Committee with a prayer to quash the
entire selection process. Since both the writ applications are inter-linked
and the dispute involved in the writ applications revolve around the
recruitment process pursuant to advertisement dated 26.01.2021 issued
by the Secretary, Odisha Legislative Assembly for examination and
appointment of seven numbers of Reporters in Odisha Legislative
Assembly, in such view of the matter, this Court is of the considered
view that both the matters are required to be heard together and
accordingly, the same were heard together by giving ample opportunity
to learned counsels for the parties and accordingly, the above noted writ
applications are being disposed of by the following common judgment.
4. The facts of the case as pleaded by the petitioners in W.P.(C)
No.31988 of 2021 is concerned, in an abridged form is that on
// 4 //
26.01.2021 an advertisement was floated by the Secretary, Odisha
Legislative Assembly for recruitment to the post of Reporters to fill up
seven posts of Reporters in Odisha Legislative Assembly. On perusal of
the advertisement under Annexure-2 to the writ application it reveals that
total seven numbers of posts of Reporters in Pay Level-10 under ORSP
Rules, 2017 were advertised to be filled up. Out of total seven posts,
advertised, 3 posts are reserved for UR category one post for male and
two posts for female, one post for SCBC male category, one post for SC
male category and two posts for ST category out of which one post of
male and one post for female. The educational qualification prescribed
under the aforesaid advertisement is University Degree having minimum
speed 40 w.p.m. in English typing in computer, 140 w.p.m. in English
shorthand, 20 w.p.m. in Odia typing in computer and 120 w.p.m. in Odia
shorthand along with Diploma in Computer Application or equivalent
qualification.
5. On a careful scrutiny of the above advertisement under Annexure-
2, this Court observed that the same provides for total numbers of posts
with reservation for separate categories. The same also provides for
educational qualification, eligibility criteria, place of examination,
documents to be attached, selection process and finally, the
advertisement also provides a Specimen application form to be filled up
// 5 //
and submitted by the aspiring candidates in block letters. Pursuant to the
aforesaid advertisement, the petitioner along with several others
including the petitioner in W.P.(C) No.6171 of 2022 applied for the post
of Reporters. After due scrutiny of their applications, some were found
complete in all respect. Accordingly, such candidates were asked to
appear in the written test that was conducted under the supervision of the
Examination Committee.
6. Before proceeding further to analyze factual aspects of the matter,
this Court would like to through light on the posts which were sought to
be filled up by virtue of advertisement under Annexure-2. On perusal of
the G.A. Department Notification dated 27.08.1983, it shows that the
Hon'ble Governor of Orissa in consultation with the Hon'ble Speaker of
the Orissa Legislative Assembly and in exercise of his power conferred
under Article 187(3) of the Constitution of India had framed a set of rules
to regulate the recruitment and conditions of service of persons appointed
to the Secretariat of Orissa Legislative Assembly. The said rule is known
as Orissa Legislative Assembly Secretarial (Recruitment and Conditions
of service) (in short "1983 Rules"). The schedule appended to the rules at
Sl. No.22 describes the post "Reporter". Further, eligibility criteria as
provided under the schedule is as follows:-
// 6 //
"By direct recruitment of University Degree holders
having a minimum speed of 40 W.P.M. in English Typing,
140 W.P.M. in English Shorthand and 120 W.P.M. in
Oriya Shorthand or by selection from among Personal
Assistants or from among the Senior Stenographers of the
service having 5 years experience as such and having
shorthand speed both in English and Oriya as indicated
above, in which case, the academic qualification shall be
relaxable to Matriculate."
7. Rule 7(1) of the Rules, 1983 provides that the appointing authority
shall be the Hon'ble Speaker, who in consultation with the leader of the
House shall make appointment. Sub-rule(2) of Rule-7 provides the mode
of appointment to Class I, Junior Class I and Class II posts of the services
other than the secretary. For better appreciation Rule-7 of the 1983 Rules
has been quoted herein below:-
xx xx xx xx
"7 (1) The appointment of Secretary shall be made by the
Speaker in consultation with the Leader o the House and in
the event of there being no House on account of
dissolution of the Assembly, the Speaker shall be
competent to make appointment in consultation with the
Governor.
(2) The appointment to Class I, Junior Class I and Class
II posts of the services other than the Secretary, shall be
made by Speaker in consultation with the Selection Board
// 7 //
comprising of the Secretary, Government Whip, Whip of
the numerically largest opposition party and one M.L.A. to
be nominated by the Speaker. Provided that the Speaker
may associate a Specialist or an expert in concerned
subject, if necessary
(Provided that in case of direct recruitment a test
shall be conducted and a select list prepared in order of
merit. In case of appointment by promotion the select list
shall be prepared on the basis of suitability and merit with
due regard to seniority."
(3) Appointment to Class III and Class IV posts of the
service shall be made by the Secretary in consultation with
the Selection Committee constituted under rule 10.
[7-A. Notwithstanding anything contained rule 7 of the
Speaker and the Secretary shall have power to make ad
hoc appointment in the posts in respect of which they are
the appointing authority for a period of not exceeding [one
year] if for some reason of other it is not possible to hold a
meeting of the Selection Board or the Selection
Committee, as the case may be, and such posts are required
to be filled up urgently.]
"7.B(1) The incumbents recruited to the post of Junior
Assistant, Junior Grade Stenographer, Junior Grade Typist,
Research Assistant and such other posts as may be ordered
by the Speaker shall pass a departmental examination or
speed test, as the case may be, in order to make themselves
eligible for promotion to the next higher post.
// 8 //
(2) Without prejudice to the provisions contained in rule
11, the incumbents directly recruited to the post of Report
shall have to pass the departmental sped test in order to
make themselves eligible to complete the probation]"
xx xx xx xx
8. So far the present petitioners are concerned, petitioner no.1
belongs to UR(M) category and the petitioner no,2 belongs to SC
category. Both the petitioners applied for the very same posts. On
07.03.2021, the typing test was held at the College of I.T. and
Management Education, Mancheswar Industrial Estate, Bhubaneswar.
Test was conducted under the supervision of the Principal and his
professional Staff of the college. The papers were evaluated by the
professional examiner deputed by the Home Department. The result of
the test that was held on 07.03.2021 published through the Orissa
Legislative Assembly website and communicated to the petitioners
through E.mail. As per notice dated 16.04.2021 of the Secretariat, Orissa
Legislative Assembly, the petitioners were declared as duly selected in
the typing test held on 07.03.2021 and were invited for shorthand skill
test both in English and Odia and for Viva-Voce Test for the posts
advertised and the same was scheduled to be held on 19.04.2021 and
22.04.2021 respectively at the College of I.T. and Management
Education, Mancheswar Industrial Estate, Bhubaneswar.
// 9 //
9. The petitioners appeared in the shorthand test, viva-voce test and
for certificate verification. Accordingly, by notice dated 21.04.2021,
issued by the Deputy Secretary, Orissa Legislative Assembly, it was
notified for the information of qualified candidates that the petitioner
no.1 stood 1st and the petitioner no.2 stood 2nd in the selection test.
Thereafter, vide notice dated 29.06.2021, the Deputy Secretary, Orissa
Legislative Assembly invited the names of the qualified candidates for
viva-voce test for the posts of Reporters of Orissa Legislative Assembly,
which was held on 22.04.2021 and accordingly, the name of the
petitioners finds place against Sl. No.1 and the petitioner no.2 at Sl. No.2
of the final select list.
10. While the matter stood thus, one of the aggrieved candidate,
namely, Sri Priyabrata Mohanty, approached this Court by filing W.P.(C)
No.8181 of 2021, this court vide order dated 03.03.2021 in I.A. No.3778
of 2021 passed an interim order to the effect that if the application of the
petitioner has already received, he shall be permitted to appear in the
interview process was made but the result involving the petitioner shall
not be declared without leave of the Court and the appearance of the
petitioner in the interview process conditional and subject to outcome of
the writ petition. While this was so, this Court vide order dated
12.08.2021 clarified the order dated 03.03.2021 thereby directing not to
// 10 //
declare the result of the petitioner alone and further it was observed that
there is no impediment on the part of the establishment in declaring result
of the other candidates. It was also directed by this Court that the result
of the petitioner in W.P.(C) No.8181 of 2021 shall be produced before
this court in a sealed cover.
11. The selection process as per Rule-7(2) of the Rules, 1983
specifically provides that the Hon'ble Speaker in consultation with the
Selection Board comprising of the Secretary to Government, Chief Whip,
Whip of nominal largest Opposition Party and one MLA to be nominated
by the Hon'ble Speaker vide order dated 21.08.2021, Under Secretary of
the Secretariat of the Odisha Legislative Assembly, Bhubaneswar
requested the Hon'ble Government Chief Whip, Hon'ble Chif Whip,
B.J.P. Legislature Party, Sri Debi Prasad Mishra, Hon'ble M.L.A. and
Secretary, Odisha Legislative Assembly for meeting of the Selection
Board which was to be held on 23.08.2021 (Monday) at 12.30 P.M. in
the Office Chamber of Hon'ble Speaker to consider and recommend for
the appointment to the posts for Odisha Legislative Assembly. It is
further stated in the writ application that the Memorandum dated
23.08.2021 of the Selection Board, the Examination Committee
recommended the names of the petitioners in order of merit for
appointment as Reporters and accordingly, the Secretary, Odisha
// 11 //
Legislative Assembly requested the Selection Board to consider and
recommend the names of the petitioners for such appointment as
Reporters against the post of UR category and SC category respectively
as no SC(M) category candidate has been selected for appointment. It
was further suggested that such appointment may be recommended
subject to the condition that the same shall abide by final outcome of
W.P.(C) No.8181 of 2021.
12. The writ application filed by one of the aggrieved candidates,
namely, Priyabrata Mohanty bearing W.P.(C) No.8181 of 2021 was
dismissed after final hearing vide order dated 15.09.2021 and the interim
order dated 03.03.2021 was vacated. After dismissal of the said writ
application, it appears that there was no restriction attached to the
recommendation of the Examination Committee to the Selection Board.
The Selection Board meeting which was fixed earlier to be held on
23.08.2021 could not take place, therefore, the Secretary, Odisha
Legislative Assembly again vide notice dated 28.09.2021 requested the
Members of the Selection Board to participate in the Selection Board
meeting which was scheduled to be held on 04.10.2021 in the Office
Chamber of Hon'ble Speaker and to discuss about the appointment to the
posts of Reporters in Odisha Legislative Assembly. Again the said
meeting of the Selection Board was postponed.
// 12 //
13. On perusal of the writ application, it is also revealed that I.A.
No.9880 of 2021 was filed on 23.07.2021 by the Odisha Legislative
Assembly through their counsel in W.P.(C) No.8181 of 2021 with a
specific prayer to pass an appropriate order/direction in granting
permission to the Opposite Parties in the said case to declare the result of
the selection process conducted pursuant to the advertisement dated
26.01.2021 including the petitioners and to finalize the process by giving
appointment to the duly selected candidates. Further the pleading in the
said I.A. has been highlighted in the present writ application, particularly,
in paragraph-3 of the I.A. wherein it was pleaded on behalf of the Odisha
Legislative Assembly, which has been extracted hereinbelow:-
".....that the Moonson Session of the Assembly is to held
very soon coupled with the fact that the post of Reporters
are lying vacant, there is an eminent and urgent need for
appointment of such Reporters for proper working of the
Assembly."
Furthermore, in pargraph-4 of the interim application dated
27.03.2021, it has been stated that despite the process of selection having
been completed considering applications of 127 candidates, who had
applied pursuant to the advertisement and out of which 76 applications
were found to be in order, accordingly, the petitioner nos.1 and 2 were
// 13 //
duly selected by the Examination Committee and their names were
recommended for appointment.
14. The meeting of the Selection Board of Odisha Legislative
Assembly, which was scheduled to take place on 04.10.2021 was again
postponed for some unavoidable circumstances, therefore, it has been
stated that such indefinite postponement of the Selection Board meeting
resulted in denial of appointment of the petitioners as Reporters.
15. On a careful scrutiny of the letter dated 21.08.2021 under
Annexure-8, issued under the signature Under Secretary, Odisha
Legislative Assembly, this Court observes that notice has been given to
the Selection Board Membes intimating that the meeting of the Selection
Board of Odisha Legislative Assembly shall take place on 23.08.2021 at
12.30 O.M. in the Office Chamber of Hon'ble Speaker. Further,
memorandum of the meeting of the Selection Board scheduled to be held
on 23.08.2021 attached to the writ application clearly reveals under
clause-4 that the recruitment test of seven posts of Reporters was
conducted by the Odisha Legislative Assembly Secretariat. It has also
been stated that the Examination Committee has recommended names of
the two petitioners as selected candidates in order of merit for
appointment as Reporters. Accordingly, the Selection Board was
// 14 //
requested to consider and recommend the names of the petitioners for
appointment as Reporters in Odisha Legislative Assembly.
16. Per contra, a counter affidavit has been filed on behalf of the
Opposite Party No.1 wherein the Opposite Party No.1 has admitted the
fact with regard to the publication of advertisement on 26.01.2001 by
Secretary OLA in daily Newspaper "The Samaja" for recruitment to the
posts of reporters. In the counter affidavit, the category wise break up of
7 numbers of posts of reports has also been reflected. It was also
admitted that the petitioner no.1 applied for vacancy in man of UR
category and petitioner no.2 SC(W) category along with requisite
documents and experience certificates. The Opposite Party No.1 has also
contended that pursuant to advertisement dated 26.01.2001, 127 numbers
of candidates submitted their candidatures and after scrutiny 76
candidates were found eligible to participate in the recruitment process.
Further, it was also contended that the Hon'ble Speaker has constituted
an Examination Committee to conduct the entire recruitment test and to
recommend the selected candidates for the posts of reporters. Such
Examination Committee consisted of the following members:-
1. Smt. Sushila Mallick - Deputy Secretary
2. Shri Matraj Dung Dung - Deputy Secretary
// 15 //
3. Sri Satyabrat Samal - Accounts Officer
17. The counter affidavit further reveals that one unsuccessful
candidate, namely, Priyabrata Mohanty being aggrieved by the eligibility
criteria in the advertisement approached this Court by filing a writ
petition bearing W.P.(C) No.8181 of 2021. Orders were passed in the
above noted writ application and he same has also been referred to in the
counter affidavit. However, this Court is not referring to the same as the
same would be mere repetition of the facts, which has already been
referred to hereinabove.
18. Counter affidavit of Opposite Party No.1 further reveals that on
07.03.2021 the typewriting test in English and Odia was conducted for
the post of reporters at the college of I.T. and Management Education,
Mancheswar Industrial Estate, Bhubaneswar as per decision of the
authority and 73 candidates appeared in the said test. Furthermore, the
Examination Committee on 15.04.2021 on perusal of the result sheet of
such test observed that only three candidates came out successfully and
accordingly, the result was published on 16.04.2021. Moreover, pursuant
to notice dated 16.04.2021, it was decided to conduct the shorthand skill
test in English and Odia among the qualified candidates. Accordingly, on
19.04.2021, such test was also conducted at the very same venue which
was supervised by experts as decided by the authority.
// 16 //
19. A perusal of the counter affidavit filed by the Opposite Party No.1
further reveals that as per the recommendation of the experts only two
candidates i.e. the petitioners were finally selected in the aforesaid test.
Accordingly, the final result of such test was published on 21.04.2021.
Immediately thereafter, on 22.04.2021, the viva-voce test was conducted
pursuant to the decision of the authority wherein both the petitioners
appeared. Finally, the result of the selection pursuant to the
advertisement was published on 29.06.2021 indicating the names, who
have participated in the selection process and only two candidates were
finally selected. The result in respect of one candidate, namely,
Priyabrata Monanty the petitioner in W.R.(C) No.8181 of 2021 was
withheld.
20. The counter affidavit further reveals that pursuant to the direction
of this Court, the result of the petitioner in W.P.(C) No.8181 of 2021,
namely, Priyabrata Monanty was placed before this Court in a sealed
cover. On 12.08.2021, this Court clarified the interim order dated
03.03.2021 by saying that "this Court is of the opinion that there is no
impediment on the part of the establishment in declaring the result of the
other candidates."
While the matter stood thus on 18.08.2021, a meeting of the
Examination Committee took place and in the said meeting basing on the
// 17 //
evaluation report of the experts, claims of the petitioners were
recommended to the Selection Board in order of their merit. In
paragraph-18 of the counter affidavit, it has been stated that the
recommendation of the Examination Committee was also approved by
the Hon'ble Speaker, OLA. Thereafter, vide notice dated 28.01.2021
meeting of the Selection Board was convened to consider and
recommend for appointment to the post of reporters in OLA Secretariat.
Although such meeting was scheduled to be held on 23.08.2021 as per
the Rule-7(2) of the rules, the memorandum for such meeting reveals that
the Examination Committee recommended the names of the petitioners in
order of their merit for appointment as reporter and that the Examination
Committee recommended for appointment as reporters, the petitioner
no.1 against UR category and petitioner no.2 against SC(W) category
since no SC(M) candidates were available for appointment. However,
said meeting of the Selection Board remained inconclusive. Thereafter,
several attempts were made to convene the meeting of the Selection
Board, however, same could not take place, as a result, the same is being
postponed from time to time.
21. Finally, in the counter affidavit, it has been stated that it is the
mandatory requirement Rule-7(2) Rules, 1983, the appointment of the
petitioners could not be made as the Selection Board could not
// 18 //
recommend the name of the petitioners and that the petitioners could not
have been given appointment without consultation with the Selection
Board as required under Rule-7(2). Moreover, in paragraph-24 of the
counter affidavit of Opposite Party No.1, it has been stated that the
selection process for the post of reporters will be completed after
approval of recommendation of the Selection Board and by the Hon'ble
Speaker.
22. Heard Mr. S. Mishra, learned counsel appearing for the petitioners
in W.P.(C) No.31988 of 2021 and Mr. S.K. Das, learned counsel
appearing for the petitioner in W.P.(C) No.6171 of 2022 as well as Mr. S.
Palit, learned senior counsel representing the Opposite Parties in both the
cases. Perused the pleadings of the respective parties, their respective
note of arguments as well as citations relied upon by both the sides.
23. Before discussing the arguments advanced by learned counsels for
the respective parties, this Court is of the considered view that since both
the matters have been heard together, the background facts of the
W.P.(C) No.6171 of 2022 be also mentioned here in a nut-shell. W.P.(C)
No.6171 of 2022 has been filed by one Satya Narayan Maharana with a
prayer to quash the entire selection process pursuant to advertisement
dated 21.02.2021 under Annexure-1 and for a direction to the Opposite
Parties to proceed further in the matter by holding proper selection
// 19 //
process and by allowing the petitioner to participate in the fresh selection
process for appointment to the post of reporters. The petitioner in the
above noted writ application is a Commerce Graduate having PGDCA
qualification with certificate of type writing and shorthand writing. It is
also mentioned that the petitioner is also having knowledge in computer
typewriting as well as having experience as a Stenographer for five years
and in addition to the above, he belongs to SEBC category. It is further
stated that the pursuant to the advertisement, the above named petitioner
submitted his candidature and after due scrutiny, he was invited to appear
in the skill test. Since the petitioner was not selected he has challenged
the selection process and publication of final result in favour of the
Opposite Party Nos.2 and 3, who are the petitioners in W.P.(C) No.31988
of 2021.
On perusal of the said writ application, it appears that the
petitioner is aggrieved by the fact that out of seven vacancies notified in
the advertisement, only two candidates were finally selected. Although
the petitioner was hopeful to get selected, however, his name does not
find place in the final select list. Further, although the petitioner belongs
to SEBC category, nobody has been selected under the said category. The
petitioner in his writ application has also referred to the fact that two
members of the Selection Committee have placed their note of dissent to
// 20 //
the entire selection process. On the ground of illegal interference from
different quarter including by one Deputy Secretary, who happens to be
the father of the Opposite Party No.2. It has also been stated that the
father of Opposite Party No.2 namely, Shri B.S. Rout is the Chief
Reporter in the Odisha Legislative Assembly. It is further alleged that
due to the intervention of the said Deputy Secretary, the selection process
has been manipulated. He has further alleged that although he has applied
for under the R.T.I. Act, he has not been provided with such information.
It has also been stated by the petitioner that he had called for dissent note
of the members of the Selection Committee but that was not supplied to
him. He has also stated that he has gathered informant from the members
of the Selection Committee that they have submitted their written dissent
before the Hon'ble Speaker, Odisha Legislative Assembly on
29.08.2021. Further, he has extracted such note of dissent in the writ
application without the source of such information. On such grounds, the
petitioner has challenged the fairness of the selection process in which
the petitioners in the other writ application were selected and their names
were also recommended by the Selection Committee.
24. The Opposite Party Nos.2 and 3 to the W.P.(C) No.2161 of 2022,
are petitioners in W.P.(C) No.31988 of 2022 have also filed a counter
affidavit to the said writ application. Without repeating the averments
// 21 //
made in such counter affidavit, which would be repetition of facts
already stated, this Court observes that such counter affidavit has been
filed by denying the allegations made in the writ application with regard
to the fairness in the selection process.
25. Very interestingly, a counter affidavit has also been filed on behalf
of the Opposite Party No.1, which is different from the counter affidavit
filed by the Opposite Party No.1 i.e. Secretary, Odisha Legislative
Assembly in W.P.(C) No.31988 of 2021. In such counter affidavit, which
was filed on 09.01.2023, the Opposite Party No.1 in paragraph-8 has
stated that the Examination Committee has raised their note of dissent to
the process of selection because of alleged wrongful intervention by the
Deputy Secretary-cum-Chief Reporter, who happens to be the father of
the Opposite Party No.2 and accordingly, in view of such dissent note of
the Examination Committee, the final result for appointing the selected
candidates as reporters in the OLA was not be published. Similarly in
pargraph-9, it has been reiterated that the Examination Committee
submitted note of dissent and expressed their serious apprehension and
reservation with regard to the selection process and it has been stated that
the members of the Examination Committee has also stated that the
irregularities and infirmities were unintentional and certainly done
without any dishonest intention. In paragraph-10 of the said affidavit, it
// 22 //
has been stated that the Hon'ble Speaker sought for views of the Law
Department and the legal opinion and upon getting such views and
opinion it has been decided to cancel the entire selection process. Further
in paragraph-12 of the aforesaid affidavit a justification for cancellation
of the selection process has been given by stating that to maintain
integrity and sanctity of the selection process, it was thought that the
selection process of the reporters on the basis of advertisement dated
26.01.2021 be considered for cancellation and fresh recruitment be made
pursuant to a fresh advertisement.
26. Counter affidavit has been filed by the Opposite Party No.1 in
W.P.(C) No.31988 of 2021 on 02.05.2022. Although such counter
affidavit was filed prior to the counter affidavit filed in W.P.(C) No.6171
of 2022, on perusal of the said counter affidavit, this Court observes that
the Opposite Party No.1 represented by OSD-cum-Secretary, OlA has
filed the said counter affidavit. Although a scrutiny of the counter
affidavit, it was observed that the Opposite Party No.1 has narrated the
procedure followed by them for the recruitment in a great deal. The
factual aspects pleaded in the counter affidavit are almost identical to the
facts pleaded in the present writ application. However, certain pleadings
of the counter affidavit need special mention here. In paragraph-14 of the
counter affidavit, it has been stated that in the selection process, two
// 23 //
petitioners came out successfully in the test and accordingly their result
was published vide Secretariat notice dated 21.04.2021 under Annexure-
A/10. In paragraph-15 of the counter affidavit, it has been stated that both
the successful candidates were called upon to attend the viva-voce test
and the result of the viva-voce test was published on 29.06.2021. Result
of the viva-voce was though published but result of Satyapriya Mohanty
was withheld pursuant to the order of this Court dated 03.03.2021.
However, they admitted that the result in respect of both the petitioners
were published in 29.06.22021.
27. In paragraph-18 of the counter affidavit, it has been stated on
behalf of the Opposite Party No.1 that on 18.08.2021, a meeting of the
Examination Committee took place. In the said meeting, the Examination
Committee, basing on the evaluation report of the experts, recommended,
in order of merit, the names of the present petitioners. The
recommendation of the committee was also approved by the Hon'ble
Speaker of the OLA. Further in paragraphs-19 and 20 of the counter
affidavit, it has also been pleaded that the meeting of the Selection Board
was convened and the same was schedule to be held on 23.08.2021 to
consider and recommend the appointment to the posts of reporters in
OLA in accordance with Rule 7(2) of the Rules, 1983. In paragraph-20 of
the counter affidavit, the approved memorandum in the meeting of the
// 24 //
Selection Board dated 23.08.2021 had been quoted in the counter
affidavit it has also been stated that vide order dated 03.03.2022 in
W.P.(C) No.6171 of 2022, this Court dismissed the said writ petition on
08.08.2022. In paragraphs-22 and 23 of the counter affidavit, it has been
stated that attempt was made to convene a meeting of the Selection
Board on 28.09.2021 and on 04.10.2921, however, on both the occasions
meetings were postponed. Finally in paragraph-24 of the counter
affidavit it has been categorically stated on behalf of the Opposite Party
No.1 that as per the provisions of Rule 7(2) of the Rules 1983,
appointment to the posts of reporters can only be made in consultation
with the Selection Board since the posts of reporters are Class-II posts
and that the selection process for the post of reporter will be completed
after approval of the recommendation of Selection Board by the Hon'ble
Speaker.
28. Surprisingly, nowhere in the counter affidavit filed by the Opposite
Party No.1 in W.P.(C) No.31988 of 2021 on 02.05.2022 there is no
whisper with regard to note of dissension by the Examination Committee
members. Although it has been alleged in the counter affidavit in the
W.P.(C) No.6171 of 2022 that a note of dissent has been submitted by
the Examination Committee members although the date of said note of
dissent has not been mentioned, neither a copy of said dissent note has
// 25 //
been annexed to the counter affidavit. In view of such confusion and two
different stands taken in two different counter affidavits filed on behalf of
the Opposite Party No.1, this Court is required to examine the issue
further, Accordingly, this Court called for records pertaining to
examination process pursuant to the advertisement under Annexure-1. On
perusal of the record, pertaining to the entire selection process pursuant
to Annexure-1, this Court observed that the note sheet dated 13.02.2014
reveals that several posts of Joint Secretary, Deputy Secretary reporting,
Under Secretary reporting, reporter, were lying vacant and accordingly,
the file was put up to fill up such vacant posts. Accordingly, steps were
taken to fill up such posts and in fact, it appears that the some of the posts
have been filled up in the meantime. On perusal of the note-sheet dated
20.11.2020, it appears that it has been noted that seven posts of reporters
are lying vacant, keeping in view the requirement of the present day i.e.
in which computer skill and higher qualification was inserted by
amending the Rules 1983 with the concurrence of the Law Department
vide amendment Rules, 2020. After obtaining concurrence of Hon'ble
Chief Minister as well as Hon'ble Speaker such rules were amended and
notified on 20.01.2021 and same was published in the Odisha Gazette on
the very same day. Accordingly, a draft advertisement was prepared for
recruitment to the post of reporters. After due approval of the authorities,
// 26 //
the advertisement was published in three daily leading newspapers fixing
last date of receiving application on 10.02.2021. On further perusal of the
note-sheet, it appears that with the approval of the Hon'ble Speaker,
Examination Committee was constituted on 03.02.2021 which consists of
the following members:-
1. Shri Matraj Dung Dung - Deputy Secretary
2. Smt. Sushila Mallick - Deputy Secretary
3. Sri Satyabrat Samal - Accounts Officer
29. Moreover, the note-sheet further reveals that total 127 numbers of
applications were received pursuant to advertisement under Annexure-1
for appointment to the post of reporters. After scrutiny of the
applications, it was decided to hold the recruitment test at College I.T.
and Management Education, Mancheswar Industrial Estate,
Bhubaneswar and accordingly, admit cards were issued to 76 candidates
to appear in type writing test which was held on 17.02.2021. Vide note
dated 02.03.2021, six Government officers were nominated to conduct
such examination test. Noting 94 dated 4th of March, 2021 reveals that
the case of Priyabrata Mohanty has been mentioned. The note-sheet
further reveals that expert committee expressed their inability to
discharge the responsibility bestowed on them on the ground that they are
not having such experience to conduct recruitment test. Accordingly,
// 27 //
Home Department was requested on 05.03.2021 to depute experts to
conduct recruitment test of reporters. In response to the aforesaid request,
the Home Department had deputed four numbers of Private Secretary to
conduct the recruitment test and note-sheet further reveals that with
regard to the interim order passed in the writ petition filed by the
Priyabrata Mohanty, views of the Law Department was sought for from
the Principal Secretary to law, who had given his opinion on 08.04.2021
by saying that the result of the candidates except, namely, Priyabrata
Mohanty be not published while giving appointment one post shall be
kept reserved and the same shall depend on final outcome of the writ
petition.
30. Accordingly, one post of reporter UR category was kept vacant
and decision was taken to continue with the recruitment process by
conducting shorthand test and viva-voce test. The note-sheet dated
23.02.2021 reveals that names of two candidates in shorthand skill test
was declared finally, names of both the petitioners were declared as
successful candidates and accordingly they were called to attend the
viva-voce test on 23.02.2021. Besides both the petitioners, Priyabrata
Mohanty was also called upon to attend viva-voce test as per order dated
03.03.2021. The said order in the note-sheet also reveals that the
examination related papers have been kept in a sealed cover. The note-
// 28 //
sheet also reveals that the decision not to publish the result of the
petitioner no.1 as he belong to UR(M) category and further it was
decided to go ahead and publish the result of the petitioner no.2 as she
can be appointed against SC category post. Accordingly, the view of the
learned Advocate General was also sought for. Note-sheet also reveals
that the note of Deputy Secretary and the Chairman of the Examination
Committee was also approved by the Hon'ble Speaker.
31. Noting dated 28.06.2021 of the Chairman of the Selection
Committee reveals that the final result of the viva-voce test was kept in a
sealed cover awaiting approval of the Hon'ble Speaker and further in
another noting dated 29.06.2021, it has been mentioned that the Hon'ble
Speaker desired to declare the viva-voce test reporters for the post of
report and before such declaration, the views of the Legal Cell may be
taken. Finally, completing the entire process vide noting dated
29.06.22021, the final result was up-loaded in the website of OLA.
Thereafter, the subsequent note-sheet reveals that the meeting of the
Selection Board was convened, however, the same was postponed. Note-
sheet dated 29.03.2021 reveals that the order dated 03.03.2022
dismissing the W.P.(C) No.8181 of 2022 had been received by the
Opposite Party No.1 office. Finally, the Under Secretary to Law, vide his
noting dated 28.09.22021 advised Opposite Party No.2 to place the result
// 29 //
before the Selection Board for approval vide noting dated 28.09.2021
before the Hon'ble Speaker in the meeting of the Selection Board
convened on 04.10.2021.
32. While this was the position, note-sheet dated 06.04.2022 reveals
that one Satya Narayan Maharana, the petitioner in W.P.(C) No.6171 of
2022 filed a writ application challenging the selection of the petitioners
wherein this Court as an interim measure directed any appointment made
shall be subject to the final outcome of the writ application. Accordingly,
the aforesaid order has been taken note of. Now comes an important
note-sheets dated 15.11.2022 prepared under the signature of OSC-cum-
Secretary, the said note is marked "Confidential". Further the same
reveals that discussion took place with regard to alleged irregularities,
infirmities pointed out by Chairman and members of the Examination
Committee on 28.09.2021, which was constituted for conducting
recruitment test and to recommend the selected candidates for
appointment as reporters in OLA. The Chairman of the Selection
Committee, namely, Shri Matraj Dung Dung had retired by then as
Deputy Secretary. It has also been mentioned that member of the
Examination Committee complained before the Hon'ble Speaker on
28.09.2021 pertaining to selection process to the posts of reporters.
Finally, in the said note-sheet, it has been expressed that to maintain
// 30 //
integrity and sanctity in the selection process, the selection process in
respect of reporters post basing on advertisement dated 29.06.2021 may
be considered as cancelled. On perusal of the note-sheet dated
15.11.2022, this Court observed that note of dissent submitted by the
members of the Examination Committee could not be produced before
this Court. Further same does not find place in the entire record. Even
accepting for the sake of argument that there was note of dissent in the
record till 15.11.2022, on 15.11.2022, for the first time, the note of
dissent findings mention in the note-sheet that too without a copy of such
note of dissent being part of the record. Moreover, without conducting a
formal enquiry with regard to such, a decision was taken hastily on one
date to recommend for cancellation of the advertisement. Although view
of the Law Department was sought for, however, noting of the then
Principal Secretary, Law Department dated 15.11.2022 reveals that in
view of the communication dated 29.08.2021, he had advised to enquire
into recruitment process and to fix responsibility on the persons involved.
On perusal of the note-sheet of the Principal Secretary, Law Department,
it appears that he has not discussed the note of dissent dated 29.08.2021,
rather he has not even mentioned the word "note of dissent" in the said
note-sheet. However, in view of the communication dated 29.08.2021, he
had advised to conduct an enquiry into recruitment process. As advised
// 31 //
by the learned Principal Secretary to Law, file was placed before the
Hon'ble Speaker and in his noting, the Hon'ble Speaker recommended
for taking the views of the Advocate engaged for the OLA Secretariat
and further to take leave of the Court at the earliest for cancellation of the
recruitment process. On the opinion of the learned Advocate appearing
for the OLA, a decision was taken to cancel the selection process to the
post of reporter which was initiated under Annexure-1 although no
specific reasons has been indicated and no justification has been given in
arriving at such a conclusion to cancel the selection process at Page-122
of the note-sheet i.e. noting from 196 reveals that instruction was
received from the Hon'ble Governor's Secretariat dated 19.08.2021 for
taking necessary action in the matter to furnish a report to the Hon'ble
Governor is Secretariat relating to the recruitment of reporters in OLA.
The allegations made by such representationist have been noted in the
said note-sheet.
33. It is, at this stage, the note-sheet of the file discussed about the
order passed by this Court for production of record. In the note-sheet
after the order passed by this Court Deputy Secretary called for the
records, since he did not get information from the Deputy Secretary
which was decided to be kept in a hard file and in a sealed cover. With
regard to original note of dissent aforesaid note no.191 reveals that OSD-
// 32 //
cum-Secretary has noted in the file that the original note of dissent was
received by him and the same was forwarded to Smt. Baijayanit
Pattanaik, Under Secretary of the establishment branch. However, it has
been finally stated that the original note of dissent is not available/found
in the branch and as such, it was presumed that the original note of
dissent dated 29.08.2021 is with Smt. Baijayanti Pattanaik, Deputy
Secretary. She was directed to submit the original note of dissent. Note
no.212, reveals that the Ex-Deputy Secretary Shri Matraj Dung Dung,
Chairman of the Examination Committee, who has retired in the
meantime, has submitted that not a single piece of paper is available with
him or with any member of the Examination Committee as he is not the
custodian of such papers. Further it reveals that the suspicious
circumstance relating to the examination as alleged by the Chairman of
the Examination Committee, who has submitted note of dissent on
29.08.2221 before the Hon'ble Speaker, such note of dissent was
submitted before the Hon'ble Speaker on 29.08.2021. Interestingly, the
above named Smt. Baijayanti Pattanaik, to whom it is stated that the note
of dissent was handover in her reply to memo dated 19.01.2023 has
stated that she was on leave on 29.08.2023 for funeral ceremony of her
father, who had passed away on previous night. As such, she has not
// 33 //
received the original note of dissent nor she was dealing with the file in
the matter.
34. In view of the aforesaid analysis of the entire note-sheet,
pertaining to the record which was produced before this Court, this Court
is of the considered view that the same raises more questions than
answers to the issues raised in the writ application. Moreover, this Court
observes that the original note of dissent does not exist as Smt. Baijayanti
Pattanaik, who has been allegedly received the note of dissent marked to
her, stated that she was on leave on that particular date. Moreover, a
careful scrutiny of the entire record reveals that although the entire
selection process was concluded in a hassle free manner in note dated
29.08.2021 and the names of the selected candidates uploaded in the
website of OLA, there was no objection with regard to selection process
at least no such discussion was found in the note-sheet of the file. It is for
the first time in November, 2022 discussion with regard to note of dissent
further even accepting that there were irregularities in the examination
process, till November, 2022. Had that been so, the illegality or
irregularity should have brought to the notice of the authorities forthwith
otherwise the delay in reporting would definitely reduce the credibility
and importance of such allegation. Considering the fact that the note of
dissent was discussed for the first time in the note-sheet of November,
// 34 //
2022, there is a delay of more than one year. Such delay cannot be
simply brushed aside by this Court, particularly when, such time gap so
large that the same could be an afterthought and as such questioning the
selection of the selected candidates has become more doubtful. Besides
such delayed discussion reduced the credibility of any kind of dissent or
allegation with regard to recruitment process. Moreover in the absence of
any clarity coupled with the fact that no enquiry having been conducted
on such allegation by the authorities before coming to the conclusion to
cancel the recruitment process, complex this Court to believe that such
belated discussion on the dissent note is an afterthought to nullify the
recruitment process. Most importantly, the relevant document, i.e. note of
dissent, as it appears from the record, has not seen the light of the day.
Therefore, this Court asked itself a question as to how far it would be
justified to take cognizance of such a note of dissent which finds not
mentioned in the note-sheet from 28.09.2021 to November, 2022. Further
this court is of the view that had the Selection Board meeting been
conducted in due time, the petitioners would have been appointed by
now. In such view of the matter, this Court has no hesitation in coming to
a conclusion that no such note of dissent exists at least the same is not
available on record despite the best attempt by the Secretariat of OLA to
// 35 //
trace the same out. Hence, the same shall not be taken into consideration
while deciding the present case.
35. Now coming to the judgment relied upon by learned counsels
appearing for the parties, this Court would first examine the judgments
referred to by learned counsel appearing for the petitioners. Mr. Mishra,
learned counsel appearing for the petitioners, at the outset, referred to the
judgment in the case of Dinesh Kumar Kashyap & others vrs. South
East Central Railway and others : reported in (2017) 9 SCC 798 to
impress upon this Court that after completion of recruitment process a
right has accrued in favour of the petitioners as held in paragraphs-5 and
6 of the above noted judgment. He further submitted, referring to the
above stated judgment, that no doubt it is true, that mere selection does
not give any vested right to the selected candidate to be appointed, at the
same time, when a large number of posts are lying vacant and the
selection process having been followed, the employer must satisfy as to
why it did not consider to appointment the selected candidates. Just
because discretion has been vested in the authority, it does not mean
discretion any can be exercised arbitrarily. Further he referred to
paragraph-6 of the judgment in the case of Dinesh Kumar Kashyap &
others(supra), which has been noted herein below :-
xx xx xx xx
// 36 //
"6. Our country is governed by the rule of law.
Arbitrariness is an anathema to the rule of law. When an
employer invites applications for filling up a large number
of posts, a large number of unemployed youth apply for
the same. They spend time in filling the form and pay the
application fees. Thereafter, they spend time to prepare for
the examination. They spend time and money to travel to
the place where written test is held. If they qualify the
written test they have to again travel to appear for the
interview and medical examination etc. Those who are
successful and declared to be passed have a reasonable
expectation that they will be appointed. No doubt, as
pointed out above, this is not a vested right. However, the
State must give some justifiable, non-arbitrary reason for
not filling up the post. When the employer is the State it is
bound to act according to Article 14 of the Constitution. It
cannot without any rhyme or reason decide not to fill up
the post. It must give some plausible reason for not filling
up the posts. The courts would normally not question the
justification but the justification must be reasonable and
should not be an arbitrary, capricious or whimsical
exercise of discretion vested in the State. It is in the light
of these principles that we need to examine the contentions
of the SECR."
xx xx xx xx
36. Learned counsel for the petitioners also referred to the judgment in
the case of R.S. Mittal vrs. Union of India : reported in (1995) Supp (2)
// 37 //
SCC 230 pararaph-6 and 10 of the judgment the Hon'ble Supreme Court
has observed as follows:
xx xx xx xx
"6. Assuming that there was only one vacancy as
claimed by the Central Government, there was gross delay
on the part of the Central Government in initiating action
to fill the same. The vacancy became available on
14.08.1988 and, according to the chart placed on record by
the Central Government, the action was initiated on
28.02.1989. We fail to understand what Government meant
by the expression 'Initiating action'. The character and
antecedents verification, if any, should have been got done
as soon as the recommendation of the Selection Board was
received. No material has been placed on record and none
was brought to our notice during the course of arguments
to show as to why the Central Government could not
initiate action as soon as the vacancy was made available.
Needless to say that the recommendation of the Selection
Board headed by a sitting Judge of this Court was
gathering dust in records of the concerned Ministry since
25-1-1988. We take serious view of the matter and we
direct that any recommendation of a Selection Board
which is headed by a sitting Judge of this Court must be
given prompt and immediate attention. Once there is a
recommendation by such a Selection Board, nothing
should intervene between the recommendation and the
// 38 //
consideration by the appointments Committee of Cabinet
(ACC). The Minister/Secretary in the Administrative
Department is under a legal obligation and is duty bound to
process the recommendation of the Selection Board by
giving it a top priority and place the same before the ACC
within a reasonable time. In the present case, though the
action was stated to be initiated of 28-2-1989 the reference
to the ACC was made on 1-5-1989. We direct that the
recommendations of the Selection Board headed by a
sitting Judge of this Court must be placed before the ACC
expeditiously and preferably within two months from the
date of recommendation.
"10. The Tribunal dismissed the application by the
impugned judgment on the following reasoning:
(a) The selection panel was merely a list of person
found suitable and does not clothe the applicant with
any right of appointment. The recommendations of
the Selection Board were directory and not therefore
enforceable by issue of a writ of mandamus by the
Court.
(b) The letter of Ministry of Home Affairs dated 8-2-
1982 which extends the life of panel till exhausted is
not relevant in the present case. In the circumstances
the life of the panel in this case cannot go beyond 18
months and as such expired in July, 1989.
It is no doubt correct that a person on the select
panel has no vested right to be appointed to the post for
which he has been selected. He has a right to be considered
// 39 //
for appointment. But at the same time, the appointing
authority cannot ignore the select panel or decline to make
the appointment on its whims. When a person has been
selected by the Selection Board and there is a vacancy
which can be offered to him, keeping in view his merit
position, then, ordinarily, there is no justification to ignore
him for appointment. There has to be a justifiable reason to
decline to appoint a person who is on the select panel. In
the present case, there has been a mere inaction on the part
of the Government. No reason whatsoever, not to talk of a
justifiable reason, was given as to why the appointments
were not offered to the candidates expeditiously and in
accordance with law. The appointment should have been
offered to Mr. Murgad within a reasonable time of
availability of the vacancy and thereafter to the next
candidate. The Central Government's approach in this case
was wholly unjustified.
37. Learned counsel for the petitioners in course of his argument
although relied upon the judgment of the Hon'ble Supreme Court in the
case of A.P. Aggarwal vrs. Government of NCT of Delhi and another :
reported in (2001) 1 SCC 600. This Court observed that the Central
Government has conferred discretion on the Government to act upon the
reserve list under the circumstances mentioned in the O.A. Although
policy was available in the reserve list for appointment as the member of
the Sales Tax Appeal Tribunal under the Delhi Sales Tax Act, yet
// 40 //
decision was taken to go for fresh selection process and for which no
explanation could be offered. After detailed analysis, the Hon'ble
Supreme Court has observed that even if such power is to be considered
discretionary and not mandatory and that same has not been exercised, it
was observed that such could not have been exercised arbitrarily. It has
also been held that no fresh selection process could be resorted to without
giving proper reason. Therefore, a broader principle has been laid down
in the said judgment to the extent that the State action, in order to be
valid must not be strictly in consonance with its issuance Article 14 and
the rule of law, must also be based upon Indian System of Governance is
based.
38. In course of his argument, learned counsel for the petitioners also
relied upon the judgment in the case of Tridip Kumar Dingal and others
vrs. State of West Bengal and others : reported in (2009) 1 SCC 768. He
has also referred to the judgment of the Hon'ble Supreme Court in the
case of Om Prakash Polai and Rajesh Kumar Maheshwari vrs. Delhi
Stock Exchange Association Ltd. and others : reported in (1994) 2 SCC
117. He also referred to judgment in the case of Union of India and
others vrs. Bikash Kuanar : reported in (2006) 8 SCC 192 wherein the
Hon'ble Supreme Court has observed that in absence of allegations of
favouritism or bias, selection process cannot be presumed to have been
// 41 //
done in a mechanical manner. Further the onus is on the party alleging
favouritims or bias to prove the same, it was held that there sists no basis
for reviewing the selection process and cancelling the appointment of the
selected candidates.
39. Per contra, Mr. S. Palit, learned senior counsel appearing for the
OLA-Opposite Party No.1 relying upon the counter affidavit in W.P.(C)
No.6171 of 2022 supported the decision of the Opposite Party No.1 to
cancel the recruitment process. He further sought for the leave of this
Court to float a fresh advertisement after cancelling the earlier
advertisement under Annexure-1. Mr. Palit, learned senior counsel
further submitted that taking into consideration the allegations made and
further keeping in view the note of dissent a decision has been taken by
the Opposite Parties to cancel the recruitment process for appointment to
the post of reporters. He further submitted that enough justification has
been given for cancellation of such recruitment process. Therefore, the
writ application filed by the petitioners is devoid of merit and
accordingly, the same should be dismissed.
40. Learned senior counsel appearing for the Opposite Party No.1 did
not controvert the factual aspect much in course of his argument,
however, by referring to the note of dissent dated 29.08.2021, he
submitted that a decision has been taken keeping in view the sanctity and
// 42 //
fairness of the recruitment process to cancel the recruitment test. In
course of his argument, he did not assail the recruit process up to final
publication of the selected candidates and he also did not submit Rules,
1983 has been violated in any manner. The entire focus of Mr Palit,
learned senior counsel's argument was to defend the conduct of the
Opposite Parties, in taking a decision to cancel the recruitment process
and the entirely based on the note of dissent and the allegation made
against the said recruitment process. However, Mr. Palit, learned senior
counsel in course of his argument very fairly submitted that the copy of
the so-called dissent is not available on record which fact is also evident
from the record produced before this Court pursuant to the direction of
this Court. He also did not dispute the memorandum dated 23.08.2021 of
the Selection Board wherein the Examination Committee recommended
the name of the petitioners in order of merit for appointment as reporters
and accordingly, the Secretary, OLA had convened a meeting of the
Selection Board. Of course, that meeting never took place and the same
was being postponed from time to time. So far the factual aspects of the
matter as argued by Mr. Palit, learned senior counsel is concerned, the
same needs no elaborated discussion here as this Court has already
elaborately discussed the entire note-sheet of the record which were
placed before this Court.
// 43 //
41. Mr. Palit, learned senior counsel appearing for the Opposite Party
No.1 assailed the prayer in W.P.(C) No.31988 of 2021 on the ground that
mere placing/positioning of the name of the candidates in the select list
does not confer a vested right to be appointed against said post. In the
said context, he has referred to the judgment in the case of Shamkarsan
Dash vrs. Union of India : reported in AIR 1991 SC 1612, State of
Orissa and another vrs. Rajkishore Nanda and others : reported in AIR
2010 SC 2100, S.S. Bali and another vrs. State of Kerala and others :
reported in (2009) 2 SCC 479, Union of India and others vrs. K.V.
Vijeesh : reported in AIR 1996 SC 3031.
On perusal of such judgment, this Court is of the considered view
that the law pronounced by Hon'ble Supreme Court in the aforesaid
judgments are quite well settled and therefore, the same does not required
any further discussion here.
42. Mr. Palit, learned senior counsel further took a plea that the writ
petition is not maintainable on the ground (I)the same is premature as the
selection process to the post of reporter is not over (II) no court can direct
the authorities to execute the select list which has not been finalized by
following the due process of selection and as per the governing rules.
// 44 //
43. While analyzing the said two grounds, this Court is of the
considered view that it is true that the selection process is not yet over as
the same is to be finalized by the Hon'ble Speaker in consultation with
the Selection Board as per Rule 7(2) of the Rules 1983. However, in view
of the settled position of law, this Court can always direct the authorities
to expedite and to conclude the selection process in view of the fact that
such selection process is a statutory one and the same has to be carried
out by following the rules, 1983. Moreover, as a public body guided by
the rule of law, the Opposite Parties cannot take the plea that there is no
obligation to conclude the selection process within a stipulated period of
time. Even otherwise also this Court on examination of records found
that there are several posts of reporters which are lying vacant at the
moment as a result of which the work of Legislative Assembly is likely
to be affected adversely. Therefore, this Court in larger public interest
have always issued a mandamus exercising of jurisdiction conferred
under Article 226 to direct the authorities to conclude the selection
process strictly in terms of rules governing such selection process.
Therefore, such argument of Mr. Palit is bound to fail.
44. Next ground that has been taken by learned senior counsel for the
Opposite Parties is that when statute/rules provides for a thing is to be
done in a particular manner, the same should be done in that manner and
// 45 //
no other manner. Such a principle of law is well recognized by a catena
of judgments although he had specifically referred to the case of
Ramchandra Keshave Adke (Dead) by Lts. And others vrs. Goviond joti
Chavare and others : reported in (1973) 1 SCC 559. By referring to the
aforesaid judgment Mr. Palit submitted that the process prescribed under
Rule 7(2) of the recruitment rules having not yet been followed, it cannot
be said that the process has attained finality. He further submitted that in
view of such rule, the Hon'ble Speaker in consultation with the Selection
Board has to finally approve the names of the selected candidates. The
same having not been done yet, this Court cannot give a direction for
appointment of the petitioners. He further submitted that final select list
submitted by the Examination Committee has not been finally approved
as required under Rule 7(2) of the Rules, 1983. Therefore, the right of the
petitioners has not been crystallized so that they would pray for issuance
of mandamus directing the Opposite Parties to appointment the
petitioners against two posts of reporter.
45. Taking into consideration such argument advanced by learned
senior counsel for the Opposite Party No.1, this Court is of the view that
the appointment has to be made strictly in terms of Rules, 1983. Further
on perusal of Rule 7(2), it appears that the Selection Board has not yet
met to finalize the selection even one and accordingly, names of the
// 46 //
petitioners have not been recommended by such Selection Board. Further
on perusal of the record, it also appears that although the meeting was
convened on several occasions, the same was postponed due to
inconvenience of members of the Board.
46. Additionally, learned senior counsel appearing for the Opposite
Parties argued that Article 14 and 16 of the Constitution of India
mandates that the selection process has to be conducted in a fair,
transparent and accountable manner. Irregularities and illegalities of
process of recruitment deprives the genuine candidates of an equal
opportunity to participate in the recruitment process and to be appointed
to the posts. Therefore, the same definitely affects the rights of the
candidates as contained in Article 14 and 16 of the Constitution of India.
Therefore, he submitted that sanctity of the recruitment process can never
be compromised. In considering such argument of Mr. Palit, this Court
has no other opinion that the argument advanced by Mr. Palit is based on
facts or allegation of irregularities in the selection process and on pre-
suppositions of a scenario that irregularities and illegalities have been
committed in the recruitment process. This Court, on detailed analysis of
facts as well as records found that there is no record to show that there
exists any illegality or irregularity in the selection process. His entire
argument on irregularity and illegality based on a note of dissent which
// 47 //
was not even available on record and the same was never produced
before this Court despite specific direction. Moreover, no attempt was
ever made to conduct an enquiry in the matter. Therefore such a ground
is not available to him to be taken in the facts and circumstances of the
present case.
47. The last plank of argument of learned senior counsel appearing for
the Opposite Party No.1 is that in view of the fact that the purity of the
selection process to public posts as mandate under Section 16 of the
Constitution of India cannot be compromised. Alternatively purity in the
selection process discovered in the slightest manner the procedure is to
be discarded and such post cannot be filled up by following a tainted
process of selection. He further submitted that there is enough material
on record to show that the selection process is tainted. This Court upon a
careful consideration of the aforesaid contention of Mr. Palit is of the
considered view that the proposition of law advanced by him is a settled
position of law and the same cannot be denied. So far purity of
examination process is concerned, the principle of law argued by Mr.
Palit shall have application depending on the facts and circumstances of
each case. So far the present case is concerned, the record does not reveal
any irregularity or illegality on the contrary, a note of dissent has been
referred to in the note-sheet whereas the said note of dissent was neither
// 48 //
produced before this Court nor the same is available on record. Other
than, such allegation, there is no materials which would impeach the
fairness and the transparency of selection process which in fact was
sought to be defended by filing the counter affidavit in W.P.(C)
No.31988 of 2021 although a different counter affidavit has been filed in
W.P.(C) No.6171 of 2022. On a careful and close scrutiny of the records
as well as note-sheet this Court also observed that the recruitment process
has been conducted by following the rules very meticulously and
accordingly names were finally up-loaded on 28.09.2021. The note of
dissent which was discussed for the first time in November, 2022 is more
than one year after the final select list was published.
48. In such view of the matter, this Court has no hesitation to come to
a conclusion that the Opposite Parties have failed to produce any material
to impeach fairness and impartiality of the selection process. However,
while observing so, this Court is also view that the recruitment process
which was started pursuant to the advertisement under Annexure-1 is still
incomplete as the requirement of Rule 7(2) of Rules, 1983 has not been
completed. As such no mandamus could be issued at this juncture to give
appointment to the petitioners.
49. In view of the aforesaid analysis of facts as well as law, this court
is of the considered view that the Opposite Parties have failed to provide
// 49 //
a valid justification to cancel the selection process on the ground of
sanctity and fairness of such recruitment process. Moreover, the
documents or the note of dissent basing on which such allegations were
made have not yet seen the light of the day and the same was never
produced before this Court despite specific direction by this Court.
Therefore, this Court is well within its discretion to draw an interference
that such a document never existed. Moreover, no steps whatsoever
having been taken to conduct any sort for enquiry to find out the veracity
of such allegation made by any of the unsuccessful candidates. As a
result this Court has not hesitation to hold that the opposite parties have
failed to provide any valid/legal justification in coming to a conclusion to
cancel the recruitment process after almost one and half years after the
final select list was recommended by the Examination Committee.
Accordingly, this Court directs the Opposite Party No.1 to immediately
convene a meeting of the Selection Board in terms of Rule 7(2) of Rules,
1983. The names of the selected candidates which were up-loaded in the
website of OLA dated 28.09.2021 be placed before such Selection Board.
Thereafter, necessary action be taken by the Opposite Party No.1
pursuant to the decision of the Selection Board and the Hon'ble Speaker
within a period of eight weeks from the date of communication of a copy
of this judgment. It is further made clear that in the event the Selection
// 50 //
Board gives its concurrence to the list of selected candidates, then the
Opposite Parties shall do well to giving the petitioners appointment
against the posts of reporters pursuant to the advertisement under
Annexure-1.
50. In view of the aforesaid judgment passed in W.P.(C) No.31988 of
2021, the writ application filed by Satya Narayan Maharana bearing
W.P.(C) No.6171 of 2022 which was heard analogously along with the
present writ application is devoid of merit and accordingly, the same
hereby dismissed.
51. Accordingly, the writ petition bearing W.P.(C) No.31988 of 2021
stand allowed. However, there shall be no order as to cost.
( A.K. Mohapatra )
Judge
Orissa High Court, Cuttack
The 19th of May, 2023/ Jagabandhu
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: Secretary-in-Charge
Reason: Authentication
Location: OHC, CUTTACK
Date: 21-May-2023 12:05:08
