Orissa High Court
An Application Under Article 226 ... vs State Of Odisha And Others on 27 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31327 of 2022
An application under Article 226 and 227 of the
Constitution of India.
Kartik Senapati .... Petitioner
-Versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. D.K. Mohapatra,
R. Ch. Das and M. Mishra
For Opp. Parties : Mr. S. Das, A.G.A.
Ms. Sumitra Mohanty,
Advocate for O.P. Nos.2 and 3
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 10.08.2023 : Date of Judgment : 27.09.2023
A.K. Mohapatra, J.
1. The above named Petitioner, who had participated in the
recruitment test conducted by the Odisha Public Service
Commission (hereafter referred to 'OPSC') to the post of Odisha
Civil Services-2020 under the Ex-serviceman category, has
approached this Court by filing the present writ application with a
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prayer to quash the notice under Annexure-9 to the writ application
dated 07.10.2022 and for a further direction to the Opposite Parties
to consider the candidature of the Petitioner for the above-
mentioned examination and declare him successful in the said
examination and accordingly grant consequential benefits to the
Petitioner.
2. The factual backdrop of the writ application, in a narrow
compass, is that, after qualifying in +2 Examination the Petitioner
joined the Indian Navy on 03.02.2006 for a tenure of 15 years.
While working with the Indian Navy, the Petitioner opted for
discharge from service on the completion of 15 years of service in
the Indian Navy in the year 2019. As per the practice and
regulations of the Indian Navy, the Petitioner was required to give
two years prior notice for not continuing in service for any extended
tenure beyond the initial 15 years of service. In course of his service
in the Indian Navy, the Petitioner underwent special advanced
training and as such, was required to serve for three years w.e.f.
01.05.2018 after completion of training.
3. After obtaining the NOC on 28.09.2020 wherein it has been
specifically stipulated that the date of discharge of the Petitioner
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would be 30.04.2021. The Petitioner was interested in joining in a
civil organization against the civil post. At that point of time, the
petitioner came across the Advertisement No.7 of 2020-2021
published by the Odisha Public Service Commission inviting
applications for the OCS Examination 2020. Accordingly, the
petitioner submitted his online application on 28.01.2021 under the
Ex-serviceman category along with NOC dated 28.09.2020 (like
other Government servants). Last date for receipt of said application
was notified to be 18.02.2021, which was later extended to
02.03.2021.
4. While the recruitment process was ongoing, the petitioner was
discharged from service w.e.f. 30.04.2021, as has been indicated in
the NOC dated 28.09.2020. By the time, the petitioner submitted his
application he had acquired a M.A. qualification. It is needless to
mention here that the petitioner was discharged from service on
expiry of 128 days from the last date of application, which is much
prior to the recruitment test that was conducted by OPSC. Since the
application of the petitioner was complete in all respects and the
same was submitted in time, OPSC accepted said online application
and accordingly allowed the petitioner to appear in the Preliminary
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Examination of the OCS 2020. Consequently, the petitioner
appeared for the Preliminary Examination and has secured 46%
marks, as a result of which he was declared successful and was
given intimation to appear for the OCS Main Examination.
5. Pursuant to the intimation issued by OPSC, the petitioner also
appeared in the Main Examination of the OCS Examination 2020,
and secured 50% of the marks therein and accordingly he was
declared successful in the Main Examination as well. After
successfully clearing both the Preliminary Examination and Main
Examination of Odisha Civil Services 2020, the petitioner was
called upon to participate in the Personality Test, which was held on
23.09.2022. In the Personality Test, the petitioner secured 52% of
the marks and received an intimation from OPSC that the he had
successfully cleared said Personality Test and was therefore called
upon for document verification. During the document verification
process, the petitioner submitted his original Discharge Certificate
dated 30.04.2021 under Annexure-8 to the writ application, which
was issued by the Indian Navy in the prescribed Naval format
(INS272 REVIV) and the original NOC dated 28.09.2020 (like other
Government servants). However, before appearing in the Personality
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Test, the petitioner was compelled to sign a pre-typed undertaking
dated 23.09.2022. Finally, the Opposite Parties have rejected the
candidature of the petitioner vide order dated 07.10.2022 under
Annexure-9 to the writ application on the ground that, the discharge
certificate was issued after the last date of submission of online
application form. Challenging said rejection order dated 07.10.2022
under Annexure-9, the petitioner has approached this Court by filing
the present writ application.
6. A counter affidavit has been filed on behalf of the Opposite
Party Nos. 2 and 3. A careful scrutiny of the counter affidavit
reveals that the Opposite Party Nos.2 and 3 have admitted the facts
that the petitioner had participated in the OCS, 2020 examination
and he was assigned Roll No.312038. He was finally short-listed for
Personality Test of OCS 2020 under UR Ex-serviceman category.
However, candidature of the petitioner was subsequently rejected
under Annexure-9 to the writ application. In the said counter
affidavit it has been stated by the Opposite Party Nos.2 and 3 that
the last date of submission of online application form was on
02.03.2021. However, the petitioner had submitted Ex-serviceman
Discharge Certificate which was issued on 30.04.2021. In such view
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of the matter, it has been stated in the counter affidavit that the
submission of the said discharge certificate by the petitioner is
contrary to Note-2 to sub-para (k) of Paragraph-10 of the
advertisement. The aforesaid provision of the advertisement
prescribes that the Discharge Certificate must have been issued by
the competent authority within the last date fixed for submission of
online application form. However, in the instant case, the Discharge
Certificate was issued after the cut-off date fixed for submission of
online application form.
7. In the said counter affidavit, the Opposite Party Nos. 2 and 3
have already led emphasis on the undertaking by the petitioner
before the OPSC. It has been stated that in the said undertaking, the
petitioner had promised that his candidature is subject to the final
decision of the Commission with regard to his Ex-serviceman status.
Based on such undertaking, the petitioner was allowed to participate
in the Personality Test and for document verification. After
verification of documents, the candidature of the petitioner has been
rejected on 07.10.2022.
8. The counter affidavit filed by the Opposite Party Nos. 2 and 3,
further reveals that the representation of the petitioner under
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Annexure-10 has already been disposed of and the petitioner has
been communicated the result thereof. With regard to the
recommendation of Rajya Sainika Board under Annexure-12, it has
been stated that the same has already been considered by the
Commission and has also been rejected. It has also been stated in the
counter affidavit that the petitioner had specifically applied under
Ex-serviceman category. However, his candidature was not
considered under the Ex-serviceman category on the ground that the
NOC (No Objection Certificate) produced by the petitioner clearly
reveals that he was due to be released from the Indian Navy on
30.04.2021 and as such, the answering Opposite Parties have stated
that the petitioner will be eligible to take any civil
employment/assignment only after 30.04.2021. On the aforesaid
grounds, it has been prayed in the counter affidavit that the writ
petition is devoid of merit and hence the same should be dismissed.
9. Learned counsel for the petitioner has filed a rejoinder
affidavit to the counter affidavit filed by the Opposite Party Nos. 2
and 3 explaining the Undertaking alleged to have been given by the
petitioner. It has been stated in the rejoinder that the Undertaking
was taken under compulsion in a pre-typed form and at that time,
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the petitioner was given an impression that the production of such
an Undertaking is a condition precedent to appear for Personality
Test. Since the petitioner neither had any other option nor any time
to object to such undertaking, and, he was required to appear in the
Personality Test to complete the recruitment, the petitioner had to
sign such undertaking on a pre-typed form under compulsion of the
Opposite Parties. In other words, it has been stated on behalf of the
petitioner that such undertaking is not voluntary and that the consent
of the petitioner was obtained under compulsion.
10. The rejoinder affidavit further reveals that the petitioner had
submitted the NOC dated 28.09.2020 wherein it was specifically
mentioned that the petitioner shall be discharged from service w.e.f.
30.04.2021 as per the Indian Navy Rules and Regulations.
Therefore, the petitioner was entitled to get a discharge certificate
only after he was discharged from service. The aforesaid facts were
well within the knowledge of the Opposite Parties. Knowing the
same fully well, the Opposite Parties have accepted the online
application form of the petitioner and accordingly, permitted the
petitioner to participate in both the Preliminary as well as Main
examination in Odisha Civil Service Examination 2020. Therefore,
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the Opposite Parties are estopped to turn back and say that the
petitioner was not eligible to be considered under Ex-serviceman
category for some technical reasons. The Discharge Certificate
dated 30.04.2021, which was obtained subsequently has been
produced before OPSC at the time of verification of the documents
on 23.09.2022. Thus, it has been stated on behalf of the petitioner
that the rejection of the petitioner's candidature is highly illegal and
arbitrary. On the contrary the Opposite Parties should have accepted
the Discharge Certificate of the petitioner as is being done in the
case of other similarly situated Government employees and the
petitioner's candidature for the OCS Examination 2020 should not
have been rejected.
11. Heard Mr. D.K. Mohapatra, learned counsel appearing for the
petitioner, Ms. Sumitra Mohanty, learned counsel appearing for the
Opposite Party Nos. 2 and 3 and Mr. S. Das, learned Additional
Government Advocate for the Opposite Party No.1. Perused the
pleadings of the parties as well as materials on record.
12. Mr. D.K. Mohapatra, learned counsel appearing for the
petitioner, at the outset submitted that the rejection of petitioner's
candidature vide order dated 07.10.2022 under Annexure-9 is highly
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illegal, arbitrary and discriminatory. He further contended that the
Opposite Parties having accepted the online application of the
petitioner and the NOC dated 28.09.2020 issued by the Indian Navy
and thereafter permitting the petitioner to participate in the
recruitment process, are not justified in rejecting the candidature of
the petitioner under Ex-serviceman category. In course of his
argument, Mr. Mohapatra, learned counsel appearing for the
petitioner referred to (Odisha Civil Service Combined competitive)
Rule, 1991. He further contended that none of the rules framed for
the purpose prescribes that the candidate belonging to the category
of Ex-Servicemen is required to furnish his Certificate of Discharge
from service to be eligible for a civil post. In the present case, the
Petitioner was discharged w.e.f. 30.04.2021, i.e., well before the
completion of the recruitment process.
13. Learned counsel for the Petitioner further contended that the
application of the Petitioner with NOC, which clearly reveals that
the date of discharge from service, was accepted by the Opposite
Parties pursuant to the advertisement. Furthermore, Opposite Parties
upon due scrutiny not only accepted the application form of the
Petitioner, but also the Petitioner was allowed to participate in two
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stages of the recruitment process and in both the examination, the
Petitioner was declared successful. Finally, the Petitioner was called
upon to attend personality test and there also the Petitioner has
succeeded. Up to the final stage of selection, no objection
whatsoever was raised by the recruiting agency with regard to the
candidature of the Petitioner and the Petitioner was allowed to
participate in the recruitment process till end. Finally, the
candidature of the Petitioner was rejected by misinterpreting the
provisions prescribed for the purpose. Therefore, it was argued by
Mr. Mohapatra, learned counsel for the Petitioner that the Opposite
Parties have committed a glaring illegality in rejecting the
candidature of the Petitioner at the final stage of selection on a very
hyper-technical ground and the same is not supported by any legal
authority.
14. Next, drawing attention of this Court to the rules, learned
counsel for the Petitioner demonstrated the procedure required to be
followed so far Ex-Servicemen candidates are concerned. Referring
to Rule-2(b) of the Odisha Ex-Servicemen (Recruitment to the State
Civil Service), Rules, 1985, it was submitted before this Court that
the word 'Ex-Servicemen' means that a person must have served in
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any post in the armed forces. Moreover Rule-2(b)(ii) provides that a
person to be called Ex-Servicemen in the armed forces, he must
have served in the Union for a continuous period not less than six
months. Further, referring to Clause-2(b)(ii), it was submitted that
the same provides that an Ex-Servicemen must have served not less
than six months for completing the period of service which is
required to be entitled to be released or transferred to the reserve.
Similarly, Rule-4 of the aforesaid Rule, 1985, provides that 3% of
the vacancy arising in a year in each of the category shall be
reserved to be filled up by candidates belonging to Ex-Servicemen
category. Similarly, the document under Annexure-3 and 4 provides
that an Ex-Servicemen who has rendered 5 years of service shall be
released on completion of assignment within one year. Learned
counsel for the Petitioner referring to notice dated 07.06.2019 of
OPSC further submitted that the candidates who were not released
from service within six months from last date of submission of
online application form, their candidature is liable to be rejected by
OPSC.
15. Similarly, referring to advertisement dated 21.12.2019 of the
Odisha Staff Selection Commission under Annexure-6 to the writ
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application, learned counsel for the Petitioner submitted that, para-
5(a) of the said advertisement provides that, persons of the Defence
Forces having more than six months to retire/discharge from the
forces as on the last date of submission of online application are not
eligible to apply as Ex-Servicemen for the post and the persons of
armed forces, who are going to retire within six months from the last
date of online application are allowed to apply by obtaining "No
Objection Certificate". The advertisement dated 23.12.2021 under
Annexure-7 issued by the Odisha State Staff Selection Commission
also provides that Ex-Servicemen going to retire within six months
from the last date of submission of application can apply for the
post.
16. Mr. Mohapatra, learned counsel for the Petitioner referring to
"Other Eligibility Conditions" under Clause-5(iii) of the
Advertisement No.07 of 2020-21 relating Odisha Civil Service
Examination, 2020, has submitted before this Court that
Government Servants, whether temporary or permanent, are eligible
to apply for the post, provided that, they possess requisite
qualifications and are within the prescribed age limit, failing which
their candidature shall be summarily rejected. Furthermore, the same
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also provides that such candidates are required to obtain NOC from
their competent authority for submission at the time of document
verification and that they must inform their respective head of
departments in writing regarding the submission of said documents
for the recruitment. Thus, learned counsel for the Petitioner
submitted that Opposite Parties have not acted in a fair, reasonable,
and non-discriminatory manner, so far as the present Petitioner is
concerned. He further contended that when Government servants are
allowed to submit their NOC at the stage of document verification,
the Opposite Party, recruiting agency, should not have taken a
different stand in the case of the Petitioner and, accordingly, they
should have accepted the discharge certificate submitted by the
Petitioner at the stage of document verification.
17. Moreover, the advertisement in question at Point No.9 under
the heading 'Important Points' at Clause-(XII) provides that online
application submitted to OPSC, if found to be incomplete in any
respect, are liable to rejection without entertaining any
correspondence with the applicants on that score. Therefore, learned
counsel for the Petitioner submitted that it is presumed that the
application of the Petitioner was complete in all respect, and as
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such, he was allowed to participate in the recruitment process till the
stage of document verification. With regard to documents to be
submitted as per Clause-10 under the heading
"Certificates/Documents to be Attached", learned counsel for the
Petitioner further contended that the candidates, who will qualify for
the main written examination are required to submit true copies of
the prescribed documents duly self-certified. Further, it provides that
the candidates must not attach the original certificates to their hard
copy of online application. Only those who are called for personality
test or interview will be required to bring with them the original
certificates on the date of verification as decided by the
Commission, failing which, he/she shall not be allowed to appear at
the personality test or interview. So far the present Petitioner is
concerned, the learned counsel for the Petitioner referred to the
Discharge Certificate under Clause-10(f) of the advertisement. He
further submitted that so far as Ex-Servicemen are concerned, they
are required to produce Discharge Certificates issued by the
commanding officers of the unit last served.
18. Ms. Sumitra Mohanty, learned counsel appearing for the
Opposite Party No.2 and 3, on the other hand, contended that
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initially the Petitioner was shortlisted for personality test of OCS
Examination, 2020 under the UR Ex-Servicemen Category.
However, his candidature has been rejected by the Commission
under Annexure-9 on the ground that Discharge Certificate issued
after the last date of submission of online application form.
Referring to the Advertisement No.7 of 2020-21 for OCS
Examination, 2020, learned counsel for the Opposite Party No.2 and
3 submitted that in the said advertisement under Clause-9(XII), it
has been specifically provided that online applications submitted to
OPSC, if found to be incomplete in any respect, are liable to
rejection without entertaining any correspondence with the
applicants on that score. Accordingly, it was submitted that it was
well within the authority and jurisdiction of the Commission to
reject the application as well as the candidature of the Petitioner as
the online application was found incomplete.
19. Ms. Mohanty, learned counsel appearing for the Opposite
Party No.2 and 3 further submitted that under Clause-10(f) of the
advertisement, it has been specifically provided that the Discharge
Certificate issued by the Commanding Officer of the Unit last
served; Ex-Servicemen candidates must submit an Affidavit that he
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has not been appointed against any civil post after Military Service.
Referring to Note-2 of Clause-10 appended to the aforesaid
Advertisement, she submitted before this Court that Degree
Certificate, Caste Certificate, Odia Test Pass Certificate, Discharge
Certificate of Ex-servicemen and Identity Card issued from Director
of Sports & Permanent Disability Certificate of Persons with
Disabilities must have been issued by the competent authority
within the last date fixed for submission of online application
forms.
20. So far the present Petitioner is concerned, she further
contended that the Discharge Certificate was issued after the last
date for submission of online application form. Therefore, the
Commission in exercise of its power under Clause-11(d) & (j) has
every authority to reject the application on the grounds mentioned
in sub-clause(d) and sub-clause(j) of Clause-11 of the
advertisement. In such view of the matter, learned counsel
appearing for the Commission submitted that no fault can be found
with the action of the Commission in rejecting the candidature as
well as application of the Petitioner under Annexure-9 to the writ
petition. Accordingly, she further submitted that the present writ
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petition is devoid of merit and, as such, the same should be
dismissed.
21. Having heard the learned counsels appearing for the
respective parties and on a careful consideration of their respective
submission as well as on a detailed scrutiny of the materials on
record, this Court is of the opinion that to adjudicate the dispute
involved in the present writ petition, this Court is required to
examine the relevant clauses in the advertisement with regard to
submission of Discharge Certificate as well as the validity of the
exercise of power by the Commission under Clause-11(d) & (j) of
the advertisement to reject the application of the Petitioner.
22. Before taking a plunge into the factual background of the case
for determination of the issues involved, it is imperative to know
about the relevant provisions contained in the advertisement. With
regard to Discharge Certificate, this Court on a careful scrutiny
observed that two different standards have been laid down, one for
Government servants whether temporary or permanent and the other
for Ex-Servicemen. So far the Government Servants are concerned,
whether they are temporary or permanent, they are eligible to apply
under the advertisement, provided they possess the requisite
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qualifications and are within the prescribed age limit as provided
under para-3 of the Advertisement, failing which their candidature
shall be summarily rejected. It is also provided that all such
candidates are required to obtain an NOC (No Objection
Certificate) from their competent authority for submission at the
time of document verification. They must inform their respective
Heads of Departments in writing regarding submission of their
application for this recruitment.
23. So far the Ex-Servicemen are concerned, on perusal of the
advertisement, it appears that 3 posts were reserved under the
Ex-Servicemen Category. All applicants were required to submit
their online application form along with photocopies of relevant
documents as prescribed under para-10 of the advertisement.
Moreover, Clause-5(v) provides only those candidates, who possess
the requisite qualification and fulfil other eligibility conditions by
the closing date of submission of registered online application
forms will be considered eligible. Therefore, there is no dispute that
the Petitioner was found eligible after submission of the online
application form. Accordingly, he was allowed to participate in the
recruitment test.
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24. Furthermore, the fact with regard to issuance of the Discharge
Certificate was also disclosed in his application form, i.e., there is
no discrepancy in the information provided in the application form
with that of the certificate which was produced later on. Clause-10
of the advertisement specifically provides that only those candidates
who will be qualifying in the main written examination are required
to submit the original certificates, i.e., only those who are called for
personality test or interview will be required to bring with them the
original certificate on the day of verification as would be decided by
the Commission, failing which such candidates shall not be allowed
to appear at the personality test or interview. It has also been
clarified that if a candidate fails to furnish any of the original
certificates and documents of the attested copies of the documents
submitted with the application for verification by him/her, for
verification on the date fixed by the Commission, his/her
candidature will be rejected. It is relevant to note here that it is not
the case of the Commission that the Petitioner did not produce the
original copies of the documents, photocopies whereof were filed
by the Petitioner at the time of submission of online application
form. Therefore, the aforesaid ground of rejection is not applicable
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to the Petitioner's case. Moreover, the Petitioner had submitted an
affidavit before the Commission indicating therein that he had not
been appointed against any civil post after military service.
25. The next question that falls for consideration by this Court is
with regard to submission of the Discharge Certificate by the
Petitioner. In this regard, Note No.2 appended to Clause-10 of the
advertisement specifically provides that the Discharge Certificate of
Ex-Servicemen must have been issued by the competent authority
within the last date fixed for submission of online application form.
In other words the Discharge Certificate, so far the present
Petitioner is concerned, it should have been issued by the competent
authority prior to the last date fixed for submission of online
application form. On a careful examination of the rejection letter
under Annexure-9, it appears that the candidature of the Petitioner
has been rejected only on the ground that the Discharge Certificate
has been issued by the Commanding Officer after the last date of
submission of online application form.
26. It is not disputed that the Petitioner was serving as CPO in the
Indian Navy. As per the relevant law/rules applicable to the Naval
Personnel, an officer who intends to take voluntary retirement
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prematurely has to mandatorily give a six months' notice.
Accordingly, the Petitioner applied for pre-mature retirement with a
request to issue a Discharge Certificate. After applying for
voluntary retirement from service, the Petitioner was interested in
an employment against the civil post. When he came across the
advertisement of OCS Examination 2020, he had applied for the
post by submitting his online application form thereby providing all
relevant and valid information. It is not a case where the Petitioner
has suppressed any material information. Furthermore, in view of
the conditions in the advertisement, the Petitioner could have
applied for appointment under the Notification of OCS Examination
2020 provided he has retired from service six months prior to the
date of publication of the advertisement. Before submitting his
application, the Petitioner had obtained the No Objection Certificate
on 28th September, 2020 as per relevant rules and laws applicable to
the Indian Navy.
27. The service of the Petitioner was to come to an end w.e.f.
30.04.2021 and in fact on that date only a Discharge Certificate was
issued in favour of the Petitioner. Accordingly, the Petitioner
pursuant to the notice of the Commission appeared on the date fixed
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for personality test and document verification on 23rd September,
2023 along with a copy of the Discharge Certificate dated
30.04.2021. However, most unfortunately the Commission rejected
the candidature of the Petitioner although he was validly selected
vide their Notice dated 7th October, 2022. Taking into consideration
the aforesaid facts, this Court is unable to comprehend the scenario
i.e. as to how the OPSC under Clause-5(ii) of the advertisement has
made it mandatory that the candidate who has applied under Ex-
Servicemen Category must produce the Discharge Certificate which
was issued within six months from the last dare of submission of
application form. At the same time, they have rejected the same on
the ground that the Discharge Certificate was issued after the last
date for submission of the application form. The aforesaid time
restriction of six months is probably with the intention to have a
close proximity of the date of retirement/discharge to the date of
engagement against a civil post.
28. On a careful examination of the factual background, it appears
that the Petitioner had already made his intention clear by applying
for NOC from the Naval Authorities for recruitment against a civil
post and, therefore, his service with the Indian Navy was to come to
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an end w.e.f. 30th April, 2021, i.e., much prior to the finalization of
the recruitment process. Moreover, the authorities accepting such
NOC issued by the Naval Authorities permitted the Petitioner to
participate in the recruitment process till the final stage. The
Petitioner who had participated in the recruitment process, with all
sincerity, succeeded at every stage of the selection only to find at
the final stage that his candidature has been rejected illegally and
arbitrarily by the authorities mercilessly on the ground that the
Discharge Certificate has been issued after the last date of
submission of the application form. In my considered view such an
action taken by the Commission is highly unfair and unjust,
unreasonable, and above all discriminatory.
29. Coming back to the allegation made by the learned counsel
appearing for the Petitioner, it was emphatically contended by Mr.
Mohapatra that the Petitioner has been seriously discriminated
against. In the aforesaid context, this Court examined the provisions
with regard to the Government employees who have applied for the
civil posts under OCS Examination 2020. On perusal of the
conditions in the advertisement, it appears that the Government
servants have been given the liberty to produce the No Objection
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Certificate under Clause-5(iii) of the advertisement, from their
competent authority, at the time of document verification.
Therefore, while continuing in service, with a No Objection
Certificate from a competitive authority, they can participate in the
recruitment test for selection and appointment to the post under the
advertisement. However, a different standard has been adopted, so
far Ex-Servicemen candidates are concerned. While giving liberty
to the Government servants to produce the No Objection Certificate
at the time of document verification, the advertisement provides that
the Discharge Certificate must have been issued prior to the last
date for submission of the application. On a careful consideration of
the aforesaid factual aspects, this Court is of the considered view
that the clause providing for submission of the Discharge Certificate
under Note-2 to Clause-10 of the advertisement, i.e., within the last
date fixed for submission of application form is highly arbitrary and
discriminatory.
30. Moreover, the aforesaid provision has been incorporated in
the shape of a Note to Clause-10 of the advertisement. In contra
distinction to the aforesaid Note, Clause-10(f), which specifically
deals with Discharge Certificate provides that the Discharge
// 26 //
Certificate issued by the Commanding Officer of the Unit last
served shall be furnished by the candidate for verification on the
date fixed by the Commission, failing which the candidature shall
be rejected. In addition to the above, the said clause also provides
that the Ex-Servicemen candidate must submit an affidavit that he
has not been appointed against any civil post after military service.
In the aforesaid context, this Court is of the considered view that
Note-2 which has been appended to Clause-10 of the advertisement
has to be read and construed harmoniously with Clause-10(f) which
deals with the Discharge Certificate. Therefore, the provision
contained in the Note cannot override the Clause-10(f) of the
advertisement. Taking into consideration the aforesaid analysis, this
Court is of the considered view that the Note-2 appended to Clause-
10 of the advertisement is highly discriminatory, so far the Ex-
Servicemen are concerned. Accordingly the portion of Note-2
which is in conflict with Clause 10(f) is required to be read down to
bring the same in conformity with the substance of Clause 10(f).
31. The next question that was raised before this Court is with
regard to the authority of the Commission to reject the application
of the Petitioner. In the said context, it is pertinent to refer to
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Clause-11 of the advertisement. The said Clause-11 provides the
ground for rejection of applications by the Commission. Sub-
clause(d) provides a ground for rejection of application on the
ground of non-furnishing of copies of Certificate/documents as
provided under para-10 of the Advertisement. Similarly, the Clause-
11(j), which is relevant for the purpose of the present case, provides
that if a candidate fails to furnish any of the original certificates and
documents for verification on the date fixed by the Commission,
his/her candidature is liable to be rejected on that ground.
32. On a careful examination of the grounds laid down in Clause-
11 of the advertisement, this Court observed that there is no specific
ground under which the candidature of the Petitioner could have
been rejected as has been done in the case of the Petitioner under
Annexure-9 to the writ application. In such view of the matter, this
Court has no hesitation to hold that the OPSC had no authority to
reject the candidature of the Petitioner.
33. In view of the aforesaid analysis of the factual as well as legal
position, this Court is of the considered view that the impugned
rejection order under Annexure-9 is unsustainable in the eye of law.
Accordingly, the same is hereby quashed. Further, the Opposite
// 28 //
Parties are directed to accept the Discharge Certificate submitted by
the Petitioner and further process the candidature of the Petitioner
keeping in view performance of the Petitioner in the recruitment test
as well as the merit list prepared by the Commission in respect of
the posts advertised pursuant to Advertisement No.7 of 2020-21 for
OCS Examination, 2020.
34. It is further made clear that in the event it is found that the
Petitioner is qualified and only on the ground of the dispute with
regard to the Discharge Certificate he has not been given
appointment to a post reserved for Ex-servicemen category, on the
recommendation of the OPSC, the Government shall give
appointment to the Petitioner by reckoning his seniority from the
date of his batchmates. However, the Petitioner shall not claim any
salary or financial benefits for the aforesaid period.
35. Accordingly, the writ petition is allowed. However, in the
facts and circumstances, there shall be no order as to costs.
( A.K. Mohapatra )
Judge
Signature Not Verified
Digitally Signed Orissa High Court, Cuttack
Signed by: DEBASIS AECH The 27th of September, 2023/Jagabandhu, P.A./
Designation: Secretary D. Aech, Secretary
Reason: Authentication
Location: OHC CUTTACK
Date: 27-Sep-2023 19:28:39
