Dr. Pallabi Thakur vs State Of Odisha & Ors. .... Opposite ...
2023 Latest Caselaw 15206 Ori

Orissa High Court

Dr. Pallabi Thakur vs State Of Odisha & Ors. .... Opposite ... on 29 November, 2023

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.30761 of 2023

      In the matter of an application under Articles 226 & 227 of the
  Constitution of India.
                            ..................

        Dr. Pallabi Thakur                           ....               Petitioner

                                                 -versus-

        State of Odisha & Ors.                       ....              Opposite Parties


       For Petitioner         :       Mr. B.S. Tripathy (1), Advocate
                                      Mr. A. Tripathy, Advocate
                                      Mr. A. Sahoo, Advocate

       For Opp. Parties :             Mr. B.P. Tripathy, AGA


PRESENT:

   THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

   ---------------------------------------------------------------------------------------
        Date of Hearing: 03.11.2023 and Date of Judgment: 29.11.2023
   ---------------------------------------------------------------------------------------

   Biraja Prasanna Satapathy, J.

The present writ petition has been filed inter alia with the

following prayer:-

"It is therefore, humbly prayed that this Hon'ble Court be graciously pleased to;

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i) hold and declare that the petitioner is eligible in all respect so as her candidature to be considered for the post of Asst. Professor (O&G) for contractual/deployment basis at VIMSAR, Burla; and further declare that the impugned rejection of the candidature of the petitioner was/is bad and illegal and violative of Articles-14 & 16 of the Constitution of India; and thereby

ii) direct the opp.parties No.2 & 3 to treat the application of the petitioner as valid to participate in the selection process by producing her original documents for verification on 26.09.2023;

iii) and pass such other order as may be deemed fit and proper in the bohafide interest of justice and fair play;

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

2. It is contended that pursuant to the advertisement issued under

Annexure-2 on 17.06.2023 by the Opp. Party No. 3 to fill up the vacant

post of Assistant Professor in different discipline, Petitioner submitted

her application as against the post of Assistant Professor (O & G). It is

contended that as provided in the advertisement the eligibility and

qualification for the post of Assistant Professor is prescribed as follows:-

"4. ELIGIBILITY and Qualification:

4.1 The candidate must be a citizen of India.

4.2 Qualification

4.2.1 The candidates must possess MD/MS/DNB Degree in the concerned discipline from any NMC/MCI permitted/approved/recognized Medical college and/or any

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other academic qualification with such additional teaching experience in the subject as per Teachers Eligibility Qualification in Medical Institution Regulations, 2022 of NMC as amended from time to time. Candidates having M.Sc.

(Medical subjects) in preclinical subjects approved by NMC/MCI may be considered if sufficient candidates with PG degree/ DNB are not available and subject to the limitations as may be prescribed by NMC/MCI from time to time. The candidates having DM/M.Ch./DNB or equivalent degree are not required any additional teaching experience.

4.2.2. The medical graduates must have registered their medical qualification at central/state medical council(Permanent Registration).

4.3. The candidates who are continuing their post PG Bond Service are also eligible to apply provided they have obtained one year of teaching experience as Senior Resident, as on the last date of application (self attested photocopy of the same must be annexed with the application).

4.4 The above qualifications must have been obtained on or before the specified last date of application."

2.1. It is also contended that in terms of Para 9 of the advertisement a

candidate is required to submit the following documents:-

"i. Prescribed application form duly filled in with passport size photograph pasted in the designated place.

ii. Bank transaction receipt towards online deposit of Rs. 1,000/- as application fee

iii. H.S.C./Equivalent Pass Certificate in support of age

iv. +2/Equivalent Pass Certificate

v. MBBS/MSc Medical/MD/MS/DNB/DM/M.Ch. pass certificate

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vi. Mark sheets of HSC, +2, MBBS/MSc(medical)/MD/MS/DNB/DM/M.Ch. or equivalent examinations including fail marks if any

vii. Chance Certificate of MBBS/MSc Medical/MD/MS/DNB/DM/M.Ch.

viii. Certificate of Registration for Medical Qualifications from State Medical Council (up to date and valid for UG &PG)

ix. Teaching Experience certificate from Competent Authority

x. No Objection Certificate from Non Odisha Govt. Employer/Authority, if applicable

xi. Photo ID issued by the Govt. authorities i.e. Voter ID card/AADHAR card/ Driving License/PAN card

xii. If a candidate claims to possess qualification equivalent to the prescribed qualification, the rule/ authority (with number and date) under which it is so treated must be furnished with the application form"

2.2. Learned counsel for the Petitioner contended that though at the time

of making the application, Petitioner had with her all the relevant

documents, but she had not obtained the teaching experience certificate

from the competent authority. Petitioner while making the application

submitted an undertaking accordingly vide Annexure-7, indicating

therein that the certificate will be produced as soon as it is issued by the

Opp. Party No. 2. It is contended that immediately after coming across

the advertisement issued on 17.06.2023, Petitioner made her application

before the Opp. Party No. 2 for issuance of the teaching experience

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certificate on 28.06.2023 under Annexure-3 through Opp. Party No. 3.

The application of the Petitioner though was forwarded to Opp. Party

No. 2 vide letter dtd.01.07.2023 of Opp. Party No. 3, but the certificate

was issued in favour of the Petitioner only on 21.07.2023 vide

Annexure-6.

2.3. It is contended that Petitioner though submitted her application by

furnishing the undertaking under Annexure-7, but without considering

the same, the name of the Petitioner was reflected in the provisional

reject list published on 08.08.2023 under Annexure-8 and with a

direction to submit her objection by 15.08.2023. In the reject list so

published under Annexure-8, Petitioner's application was rejected on the

ground that the Petitioner has not submitted the teaching experience

certificate and MBBS Chance certificate. It is contended that on coming

across the inclusion of the Petitioner's name in the reject list so

published on 08.08.2023 under Annexure-8, Petitioner provided the

MBBS Chance certificate as well as teaching experience certificate

through e-mail on 09.08.2023.

2.4. Learned counsel for the Petitioner contended that as per the

advertisement issued under Annexure-1, the last date for making the

application was fixed to 03.07.2023. But the Petitioner even though

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made the application before Opp. Party No. 2 to get the teaching

experience certificate on 28.06.2023 under Annexure-3 and it was

forwarded by Opp. Party No. 3 on 1st July, 2023, but the certificate was

only issued in favour of the Petitioner on 21.07.2023. Since the

Petitioner had already made the application to get the teaching

experience certificate on 28.06.2023 i.e. much prior to the last date of

making the application, Petitioner along with the application submitted

an undertaking that she will provide such certificate as soon as she

received the same from Opp. Party No. 2. Petitioner on receipt of the

experience certificate on 21.07.2023 and on coming across provisional

reject list published under Annexure-8 provided the teaching experience

certificate as well as the MBBS Chance certificate on 09.08.2023 vide

Annexure-9. But instead of accepting such compliance of the Petitioner,

Petitioner's name was included in the impugned final reject list so

published by the Opp. Party No. 3 on 11.09.2023 under Annexure-10.

Petitioner is aggrieved by such inclusion of her name in the final reject

list so published under Annexure-10. It is contended that Petitioner's

name was included in the final reject list on the ground that no new

document could be entertained in terms of Clause 4.3 of the

advertisement.

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2.5. Mr. B.S. Tripathy, learned counsel for the Petitioner however

contended that while on the ground that no new document could be

entertained, Petitioner's name was included in the impugned final reject

list published under Annexure-10, but the self same authority accepted

such documents submitted by other intending candidates and their names

were included in the additional accept list published on 11.09.2023 under

Annexure-11.

2.6. It is contended that one Dr. Anwesha Mishra, whose name is

included in the additional accept list published under Annexure-11 had

not submitted the teaching experience certificate along with her

application and the said certificate was only produced after she obtained

the same on 14.08.2023 vide Annexure-18. It is accordingly contended

that since teaching experience certificate obtained by Dr. Anwesha

Mishra on 14.08.2023 was accepted and her name was included in the

additional accept list so published under Annexur-11, the inclusion of the

Petitioner's name in the final reject list on the ground that no new

document could be entertained as per Clause 4.3 of the advertisement is

not sustainable in the eye of law. It is also contended that since the

Petitioner had no latches for delayed receipt of the teaching experience

certificate even though she made the application on 28.06.2023 under

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Annexure-3, the certificate issued to her by Opp. Party No. 2 on

21.07.2023 should have been accepted. With regard to non-submission

of the MBBS Chance certificate, learned counsel for the Petitioner

contended that as provided under Para 9 of the advertisement a candidate

has to submit the MBBS/ MSc. (Medical)/ MD/ MS/ DNB/ DM/ M.Ch.

pass certificate. Petitioner in terms of Para 9 (vii) while making her

application had submitted the Chance certificate of her M.S. examination

and it is also not disputed.

2.7. Therefore, on the ground that the Petitioner has not submitted the

Chance certificate of her MBBS examination and accordingly her

application was rejected is also not sustainable in the eye of law. In

support of the aforesaid submission with regard to submission of Chance

certificate of either any one of the examination, Mr. Tripathy relies on a

decision of this Court so passed in the case of Dr. Abhisek Mishra Vs.

State of Odisha & Ors. (W.P.(C) No. 32442 of 2023). This Court while

dealing with the similar issue with regard to submission of Chance

certificate in para 6 of the said order has held as follows:-

"6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that as per the advertisement a candidate has to produce the Chance Certificate of MBBS/ MSc/ Medical/ MD/ MS/ DNB/ DM/ M.Ch.. Since the Petitioner along with

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his application had produced the Chance Certificate of his M.S. examination, which is not disputed, this Court while quashing the rejection of the Petitioner's application on the ground indicated in Annexure-6, directs Opp. Party No. 2 to accept the same and proceed with the matter in terms of the advertisement."

2.8. Learned counsel for the Petitioner further contended that since the

Petitioner had admittedly the teaching experience by the time she

submitted her application in terms of Annexure-2 in view of the decision

of the Hon'ble Apex Court in the case of Divya Vs. Union of India &

Ors. and another decision in the case of Sweety Kumari Vs. State of

Bihar & Ors., the application of the Petitioner could not have been

rejected. Hon'ble Apex Court in the case of Divya, in Para 57, 61 & 86

has held as follows:-

"57. Be that as it may, we are bound by the judgment of the three-Judge Bench in Ashok Kumar Sharma (supra) and we follow the said judgment and reiterate the principle laid down thereon. It is also interesting to note that even in Deepak Yadav (supra), a judgment, strongly relied upon by the learned counsel for the petitioners, the principle in Ashok Kumar Sharma (supra) has been reiterated. However, because of what the Court called an abnormal and cataclysmal year, an exception was made due to the ongoing pandemic, lockdown and restrictions imposed thereof. In Alok Kumar Singh (supra), no rules like the ones present in this case are shown to have existed. In the present case, there are clear prescriptions as to eligibility, as has been discussed herein above.

                        XXX             XXX            XXX





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61. The challenge made in the writ petition to declare Rules 13, 27(3) and 28 to the extent it prescribes that candidate must be in possession of a EWS certificate as on the closing date of the application for preliminary examination to be ultra vires Article 14 is only to be stated to be rejected. There is no case made out to show that the cut-off of 22.02.2022 was picked out of the hat. That was the last date for submission of the application and, according to us, it was a validly prescribed cut-off. In fact, the law laid down by this Court as discussed herein above is, where there is absence of any rule or absence of any prescription, the last day for fulfilling the eligibility is the last date of submission of the application. This is a judicially recognized default date. In this case the last date for filing of the application has been prescribed as the cut-off in the Rules and we see absolutely no case for violation of Article 14.

XXX XXX XXX

86. Based on the above discussion, our conclusions are as under :-

i) The candidates claiming benefit of EWS Category for the purpose of CSE-2022, acquire eligibility only if they meet the criterion prescribed by the Central Government in the O.M. dated 19.01.2019 and 31.01.2019 and are in possession of the required Income and Asset Certificate (I&AC), based on the income for the year 2020-21. Further, as required under Rule 28 of the CSE Rules, 2022 read with the O.M. of 19.01.2019 and 31.01.2019 the candidate should have been in possession of the Income and Asset Certificate (I&AC) as on 22.02.2022. Any candidate not in possession of the I&AC in the prescribed format as mentioned herein above cannot claim the benefit of EWS Category. Equally, as required under Rule 13 of the CSE Rules, 2022 at the stage of DAF-1, the document in possession as on 22.02.2022 in the prescribed format, had to be submitted online before the prescribed date. The UPSC was justified in rejecting the candidature of those candidates claiming benefit under the EWS Category if they had submitted their I&AC beyond the stipulated deadline. This conclusion has to be read with the reasoning in the judgment, particularly in paragraphs 39, 40

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and 41 under the heading "Eligibility for EWS category candidates for CSE-2022".

ii) As a sequel to conclusion (i) above, we record that the UPSC was justified in prescribing the cut-off date for possession and for uploading of the I&AC in the prescribed format for claimants claiming benefits under the EWS Category. This flows from the O.M. dated 19.01.2019 & 31.01.2019 read with Rules 13, 27(3) and 28 of the CSE- Rules, 2022 and the long line of judgments in which principles for prescription of cut-off for eligibility are laid down.

iii) For the reasons set out in paragraphs 47 to 50 herein above under the sub-heading "Legal Status of CSE-2022 Rules", we hold that the CSE-2022 Rules have the force of an enforceable law. They are traceable to the All India Services Act, 1951 read with the Indian Administrative Service (Recruitment) Rules, 1954 read with the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955 and all this read with Article 73 of the Constitution of India.

iv) Rules 13, 27(3) and 28 of the CSE-Rules, 2022 are constitutionally valid for the reasons set out in para 61 herein above under the sub-heading "Validity of CSE- Rules, 2022 - Validity of the cut-off date".

v) The UPSC was justified in rejecting the claim of the petitioners, for consideration under the EWS Category in CSE-2022."

Similarly, in the case of Sweety Kumari, Hon'ble Apex Court

in Para 18 has held as follows:-

"18. The view taken by this Court is fortified by the analogy drawn in the case of Charles K. Skaria and Others vs. Dr. C. Mathew and Others (1980) 2 SCC 752 whereby Justice Krishna Iyer speaking for the Court held that the factum of eligibility is different from factum of proof thereof. This Court

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held that if a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later."

2.9. Making all such submissions, learned counsel for the Petitioner

contended that since teaching experience certificate obtained by

similarly situated candidate on 14.08.2023 was not only accepted but

also her name was reflected in the additional select list published on

11.09.2023 under Annexure-11, the rejection of the Petitioner's

application on the ground indicated in Annexure-10 on 11.09.2023 is not

sustainable in the eye of law and requires interference of this Court.

3. Learned Addl. Govt. Advocate on the other hand contended that since

in terms of the advertisement, Petitioner by the time she submitted her

application was not having the teaching experience certificate, which she

obtained only on 21.07.2023, no illegality or irregularity has been

committed in rejecting her application with publication of the final reject

list under Annexure-10. It is also contended that in terms of the

advertisement the Petitioner was required to produce the chance

certificate of her MBBS as well as M.S. examination. Since the

Petitioner had not submitted the chance certificate of both the

examination, her application was also not entertainable. It is accordingly

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contended that the relief as prayed for by the Petitioner cannot be

entertained by this Court in view of such lacunae.

4. Having heard learned counsel appearing for the Parties and after going

through the materials available on record, this Court finds that pursuant

to the advertisement issued under Annexure-2 on 17.06.2023 the last

date of making the application was fixed to 03.07.2023 and the date of

verification of the document was fixed to 12.07.2023, which was

subsequently fixed to 27.09.2023. As found from the record, the

Petitioner prior to making her application submitted the application

before Opp. Party No. 2 to issue the teaching experience certificate on

28.06.2023 under Annexure-3 and the said application was duly

forwarded to Opp. Party No. 2 by Opp. Party No. 3 vide letter

dtd.01.07.2023 under Annexure-3.

4.1. Petitioner though admittedly had the teaching experience as a senior

resident, but the teaching experience certificate was only issued to the

Petitioner on 21.07.2023 under Annexure-6. Petitioner's name when was

included in the provisional reject list published on 08.08.2023 under

Annexure-8, Petitioner immediately complied the objection by

submitting the teaching experience certificate as well as the MBBS

Chance certificate on 09.08.2023 under Annexure-9. But without

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accepting such document of the Petitioner, her name was included in the

final reject list so published under Annexure-10.

4.2. This Court finds that similar teaching experience certificate

submitted by Dr. Anwesha Mishra, which she obtained only on

14.08.2023 under Annexure-18 was not only accepted but also her name

was included in the additional accept list published on 11.09.2023 under

Annexure-11. In view of such position and placing reliance on the

decisions of this Court as cited (supra), this Court is of the view that

along with her application Petitioner was not required to submit the

MBBS Chance certificate as in terms of Clause 9(vii), a candidate has to

submit Chance certificate of anyone of the examination. Since the

Petitioner along with her application had submitted the chance certificate

of her M.S. examination, there is no requirement to submit the MBBS

chance certificate in view of the decision rendered by this Court in the

case of Dr. Abhisek Mishra as cited (supra).

4.3. Similarly, placing reliance on the decision of the Hon'ble Apex

Court as cited supra, this Court is of the view that since by the time

Petitioner made her application, she had the requisite teaching

experience and because of the delayed approach of Opp. Party No. 2, she

get the certificate only on 21.07.2023, Opp. Party No. 3 should have

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accepted the same by including her name in the accept list as has been

done in the case of Dr. Anwesha Mishra. In view of such position, this

Court is inclined to quash the rejection of the Petitioner's application so

indicated in Annexure-10 and quash the same accordingly. Since this

Court while issuing notice of the matter had permitted the Petitioner to

participate in the selection process and pursuant to the said order it is

admitted by the State Counsel that the Petitioner was allowed to

participate in the selection process with due verification her documents

on 27.09.2023, this Court directs Opp. Party No. 3 to consider the

application of the petitioner and provide her appointment if she has been

found otherwise eligible. Such an exercise be undertaken and completed

within a period of four (4) weeks from the date of receipt of this order.

5. The writ petition is disposed of accordingly.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 29th of November, 2023/Sneha

Location: High Court of Orissa, Cuttack