Orissa High Court
Monali Routray vs State Of Odisha & Others .... Opp. ... on 28 June, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34888 of 2022
An application under Articles 226 and 227 of the
Constitution of India.
Monali Routray .... Petitioner
Mr. D. Mohapatra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D.Mohapatra, A.S.C.
Mr. S. Swain, Advocate for OSSC
Mr. B. Routray, Senior Advocate
for O.P. Nos.9 to 15
Mr. B.K. Dash, Advocate
for O.P. Nos.7 & 8
W.P.(C) No.2158 of 2024
Chinmayee Mohapatra .... Petitioner
Mr. K.K. Nayak, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D.Mohapatra, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 13.05.2024 | Date of Judgment: 28.06.2024
______________________________________________________
Page 1 of 47
A.K. Mohapatra, J. :
W.P.(C) No.34888 of 2022:-
1. The present writ application has been filed at the behest of
unsuccessful candidates who participated in the recruitment process
pursuant to advertisement dated 31.12.2019 under Annexure-1 for
recruitment two different Group-C technical posts on contractual
basis, under the Directorate of Printing, Stationery and Publications,
Odisha and Commerce and Transport Dept., Govt. of Odisha. The
Petitioner further seeks to challenge the final selection made
pursuant to the advertisement under Annexure-1 and the final result
thereof under Annexure-4 on the ground that the same is contrary to
law and that the entire selection is vitiated. Alternatively, it has also
been prayed for a direction to conduct the selection process through
an independent committee without involving the persons interested
and to act upon the recommendation of such independent
committee. She has also prayed for a declaration to the effect that
the Petitioner has been selected in the said selection process. A
further prayer has also been made for a direction to hold a detailed
investigation by an independent agency with regard to illegalities
and corruption committed in course of such selection process.
2. The factual matrix of the Petitioner's case, in a narrow
compass, is that an advertisement was published under Annexure-1
to the writ application for selection to the post of copy holder to be
appointed under the Directorate of Printing, Stationery and
Publications Odisha. The Odisha Staff Selection Commission was
the recruiting agency which had published the advertisement on
31.12.2019 for recruitment two different Group-C technical posts
on contractual basis. Pursuant to the aforesaid advertisement, the
present petitioner along with other eligible candidates participated
in the recruitment process. On 14.10.2022, a list of provisionally
short-listed candidates was published inviting such candidates to
appear in the professional trade test (practical). Both the Petitioner
as well as the private-Opposite Parties, having qualified in the
written examination, were invited to appear in such professional
trade test.
3. After conclusion of the entire selection process, a final
merit list was prepared and the selected candidates, including the
Petitioner, were asked to appear for their certificate verification
process before the Opposite Party No.4-Commission on
23.11.2022. After such verification, the final select list of Copy
Holders was published by the Opposite Party No.4 on 28.11.2022.
The said final list includes the name of the private-Opposite Parties.
However, since the Petitioner was found unsuccessful, her name
was not included in the final select list under Annexure-4 to the writ
application. Being aggrieved by such conduct of the Opposite Party
No.4, the Petitioner has approached this Court by filing the present
writ application with a prayer which has been narrated in detail in
the preceding paragraph.
W.P.(C) No.2158 of 2024:-
4. The above noted writ application has been filed by the
Petitioner, who happens to be a selected candidate for the post of
Copy Holder and her name finds place in the final select list, for a
direction to the Opposite Parties to issue necessary appointment
letter as per order dated 25.07.2023 passed in W.P.(C) No.34888 of
2022 and for further direction to the Opposite Parties to keep one
post reserved out of Serial Nos.7 and 9.
5. The factual background of the present case leading to filing
of the present writ application is that the Petitioner is a +3 graduate
with I.T.I. (COPA) and has acquired experience by undergoing
training at the Odisha Govt. Press. An advertisement dated
31.12.2019 issued by the Opposite Party No.4 for recruitment to
various posts including 9 nos. of post of Copy Holder. Out of the
said 9 nos. of post of Copy Holder, 3 posts have been horizontally
reserved for candidates belonging to the women category. The
Petitioner, who falls under the women category, applied for the post
of Copy Holder and was assigned the Roll No.191918400073. The
Petitioner participated in the recruitment process and cleared the
Main Written examination. Thereafter, she was called to appear in
the Professional Trade Test and subsequently for the verification of
her certificate. The writ petition further reveals that the Petitioner
was selected for the post as she had secured 79.5 mark. Whereas,
the Petitioner in the other writ application i.e. W.P.(C) No.34888 of
2022 had secured only 75.5 marks. It has further been averred in the
writ petition that in the other writ application, i.e. W.P.(C)
No.34888 of 2022, this Court while admitting the said writ
application had stayed any further action pursuant to the
advertisement under Annexure-1, which was subsequently modified
vide order dated 25.07.2023 to the extent that one post of Copy
Holder befitting to the status of the Petitioner in the other writ
application shall be kept reserved till final disposal of the said writ
application and any appointment made in the meantime shall be
subject to the final outcome of the said writ application. It appears
that in view of the modified interim order, the case of the present
petitioner has not been considered and she has not been given
appointment despite being duly selected in the recruitment process.
As a result, the Petitioner was compelled to approach this Court by
filing the writ application bearing W.P.(C) No.40055 of 2023. This
Court disposed of the aforesaid writ application vide order dated
08.12.2023 by reiterating the order dated 25.07.2023 and by
directing to the Opposite Parties to consider the case of the
Petitioner for appointment subject to her suitability and eligibility
as well as the availability of posts for such appointment.
6. It has been alleged in the aforementioned writ application
that despite the order dated 08.12.2023, the Opposite Party No.2 did
not take any decision thereon. On the contrary, the Opposite Party
No.2 has referred the matter to the Govt. for taking a final decision.
It has also been alleged that although two selected candidates at Sl.
Nos.7 and 9 were issued with show-cause notices, so far as their
eligibility is concerned, however, instead of keeping one post
reserved out of Sl. Nos.7 and 9, the Opposite Parties preferred to
reserve the post which should have been filled up by giving
appointment to the present Petitioner. Furthermore, it has been
alleged that since the selection of candidates at Sl. Nos.7 and 9 are
disputed, the Opposite Parties should have reserved one of such
post instead of reserving the post which is meant to be filled up by
appointing the present Petitioner. Further, referring to the counter
affidavit filed by the Opposite Party Nos.2 and 3 in W.P.(C)
No.34888 of 2022, the Petitioner has stated that although 20 posts
of Copy Holder, which are sanctioned posts, are available to be
filled, only 9 posts were advertised to be filled up leaving another
11 posts of Copy Holder to remain unfilled. It has also been stated
in the writ application that there is an acute shortage of Copy
Holders in the Govt. Press and the same causes immense difficulty
in performing the work assigned to the Odisha Govt. Press by the
Government. The writ petition further referred to the decision of the
Empowered Committee meeting held on 05.10.2018 which had
approved filling of 9 vacant posts of Copy Holder and accordingly,
the OSSC has issued the advertisement in question.
7. The writ petition further reveals that although the Petitioner
was selected, and in view of the modified interim order dated
25.07.2023 the Petitioner should have been issued with an
appointment letter in respect of one Copy Holder post coming
under UR (W) Category, however, the Opposite Parties have failed
to issue any appointment letter in favour of the Petitioner. It has
also been stated that pursuant to the order dated 25.07.2023, the
Opposite Parties have filled up 6 posts out of 9 posts which were
advertised. Therefore, the Opposite Parties have left out Sl. Nos.7, 8
& 9 of the merit list. The writ petition further reveals that the
present petitioner stands at Sl. No.8 under UR (W) category. So far
Sl. Nos.7 and 9 are concerned, the Opposite Parties have issued
letters dated 26.09.2023 to each one of them pointing out certain
irregularities in the certificate verification for which the committee
has observed that they are not eligible for such appointment. In
view of such fact, the Petitioner has claimed in the writ petition that
she should have been appointed ignoring the case of the persons
whose name finds place at Sl. Nos.7 and 9, since the said persons
are not eligible to be appointed to the post of Copy Holder pursuant
to the advertisement.
8. In the writ petition, the Petitioner has also claimed that
since 11 nos. of sanctioned posts are still lying vacant, the Opposite
Parties could have kept one post reserved out of the aforesaid 11
posts. Furthermore, as per the order dated 25.07.2023, this Court
had directed to keep only one post reserved out of the 9 advertised
posts. However, the Opposite Parties have filled up only 6 posts
keeping 3 posts vacant out of the total advertised 9 posts. In support
of her contention, the Petitioner has also averred that she has
secured 79.5 % marks and as such she was selected and placed at
Sl. No. 8 of the final select list and that there were no irregularities
detected in the certificate produced by the Petitioner. On such
ground, it is alleged that the interim order dated 25.07.2023 has not
been carried out in its letter and spirit by the Opposite Parties.
Similarly, it was also contended that the order dated 08.12.2023
passed in W.P.(C) No.40055 of 2023 has also not been carried out
by the Opposite Parties.
9. It is pertinent to mention here that in W.P.(C) No.2158 of
2024, no counter affidavit has been filed. However, vide order
dated 13.05.2024, this Court had directed that the matter shall be
heard finally along with W.P.(C) No.34888 of 2022. Therefore, the
fate of the present case depends on the outcome of the dispute
involved in W.P.(C) No.34888 of 2022.
10. Reverting back to the dispute involved in W.P.(C)
No.34888 of 2022, this Court heard Shri D. Mohapatra, learned
counsel for the Petitioner and learned Additional Standing Counsel
appearing for Opposite Party Nos.1 & 3 and Mr. S. Swain, learned
counsel appearing for the OSSC-Opposite Party No.4 and Mr. B.
Routray, learned Senior Counsel appearing for the Opposite Party
Nos.9 to 15 and Shri B.K. Dash, learned counsel appearing for the
Opposite Party Nos.7 and 8. Perused the pleadings of the respective
parties as well as their written note of submissions and other
materials placed before this Court for consideration. Considering
the submissions made by Mr. Mohapatra, learned counsel for the
Petitioner who had alleged bias and has challenged the selection
process on the ground of that such selection was not fair and proper,
this Court had directed the learned counsel for the OSSC to produce
the entire record before this Court. Pursuant to the order passed by
this Court Mr. Sanjib Swain, learned counsel appearing for the
OSSC produced the records pertaining to the selection process
pursuant to the advertisement under Annexure-1 before this Court.
11. Mr. D. Mohapatra, learned counsel appearing for the
Petitioner at the outset submitted that the Opposite Party No.4-
OSSC in its counter affidavit for the first time brought out
Annexure-B/4 dated 24.04.2024. The said document reveals that
out of 9 posts of Copy Holder advertised, 6 posts were for General
and 3 posts out of 6 posts were for General (Women) candidates.
He further contended that the advertisement prescribes the
qualification for the post of Copy Holder which was in accordance
with Odisha Govt. Press Industrial Employees, Classification,
Recruitment, Promotion, Conditions of Service and Appeal Rules,
1978 (hereinafter referred to as "Rules, 1978"). Such qualification
for the post of Copy Holder provides; "Matriculate with proficiency
in literary subjects and flare for grammar and composition.
Preference will be given to those passing National Trade
Certificates in Hand composing trade." He had further assailed that
the advertisement was published on 09.12.2021, i.e. almost two
years after the same was published in the website. As such it was
alleged that there was no wide publication of such detailed
advertisement. He further contended that the aforementioned
advertisement provides qualification for the post of Copy Holder
which is different from and contrary to the qualification for the
same post provided under Rules, 1978, i.e., the advertisement
provides for Bachelor's Degree in any discipline and a preference
in the form of weightage mark @ 5% of the mark secured in the
written examination to be awarded to candidates having NTC/NAC
certificate in printing trade. In such view of the matter, it was
contended that the advertisement in question is not in conformity
with the Recruitment Rules, 1978. He further assailed that due to
delay in publishing the advertisement in the newspaper, limited
response was received throughout the state i.e. a total of only 91
candidates had applied for the post of Copy Holder. Referring to the
above, learned counsel for the Petitioner submitted that a fair
selection procedure has not been followed.
12. Learned counsel for the Petitioner further submitted that the
qualification specified in the advertisement is contrary to the Rules,
1978 and as such it was contended that the same will not stand the
scrutiny of law. In the aforesaid context, learned counsel for the
Petitioner drew attention of this Court to the judgment of the
Hon'ble Supreme Court in Malik Mazhar Sultan and anr. vs. U.P.
Public Service Commission and others reported in (2006) 9 SCC
507. Learned counsel for the Petitioner specifically referred to the
observation of the Hon'ble Supreme Court in para-21 of the said
judgment. He also referred to the judgment of the Hon'ble Supreme
Court in Asish Kumar vs. The State of Uttar Pradesh and others
reported in (2018) 3 SCC 55, specifically to para-27 of the said
judgment and contended that any part of the advertisement which is
contrary to the statutory rules has to give way to the statutory
prescription. Thus, learned counsel for the Petitioner submitted that
the eligibility prescribed in the advertisement being contrary to the
Rules, 1978 shall pave way for the statutory rules and the statutory
rules shall therefore prevail and take precedence over the conditions
laid down in the advertisement.
13. Learned counsel for the Petitioner further referred to the
counter affidavit filed by the Opposite Party Nos.1 & 3 and
submitted that the qualification in question was revised pursuant to
the decision taken in the meeting held on 21.08.2020. Such a
decision was taken by the committee keeping in view the
development of modern (Printing Technology). While countering
the same, learned counsel for the Petitioner submitted that the
development in technology has no nexus with the qualification
criteria for the post of Copy Holder. He further submitted that the
proposal of the Committee for change in the qualification criteria
cannot be said to have attained finality as the rule was not suitably
modified with the approval of State Cabinet. Further, referring to
the Annexure-D/4 of the counter affidavit filed by the Opposite
Party No.4, learned counsel for the Petitioner submitted that such
amendment was to take effect from 06.02.2024. Therefore, it was
contended by learned counsel for the Petitioner that the
advertisement runs contrary to the Rule, 1978.
14. In the course of his argument, learned counsel for the
Petitioner further emphatically alleged that some of the selected
candidates were taking training at the govt. press. It was also
alleged that some of the candidates are near and dear ones of some
responsible officers of the govt. press. It was also submitted that
such candidates were being given training by the Odisha govt. press
under the supervision of some officers who are also part of the
selection process. Learned counsel for the Petitioner also referred
the certain photographs which reveal that a group of candidates
were interacting with some of officers of Govt. Press during their
training in a copy holding section of the Govt. Press. In such factual
background, learned counsel for the Petitioner alleged bias basing
on the allegation that some of the candidates had undergone
training at the Odisha Govt. Press and in course of training, they
had the occasion to interact with some of the officers who were
later found to be a part of the selection process. Accordingly, it was
alleged that the Opposite Parties have failed to follow a fair and
transparent recruitment process while selecting candidates for the
post of Copy Holders. In the aforesaid context, learned counsel for
the Petitioner also referred to the judgment of the Hon'ble Supreme
Court in the matter of Sachin Kumar & ors. vs. Delhi Subordinate
Service Selection Board reported in (2021) 4 SCC 631.
15. To further highlight his contention with regard to failure on
the part of the Opposite Parties to follow a fair and transparent
procedure, learned counsel for the Petitioner also referred to the
counter affidavit filed by the Opposite Party Nos.1 & 3. He placed
specific reference to para-13 of the Counter Affidavit wherein the
Opposite Party Nos.1 & 3 have admitted that some of the ex-
students of the School of Printing and Allied Trades, Cuttack had
met the Head Readers of the Press Proper Unit during recreational
hours and enquired about the duties and responsibilities of the Copy
Holder and such interaction was confined to a verbal questionnaire.
It was also contended that the aforesaid fact came to the knowledge
of the Petitioner only after the examination was over. It was
specifically alleged by learned counsel for the Petitioner that such
candidates are placed at Sl. Nos.9, 10 and 11 and are the ex-
students of Mr. Nehru Dhamel, who happens to be the principal of
SPAT (School of Printing and Allied Trades). In course of his
argument, learned counsel for the petitioner placed heavy reliance
on the copies of the photographs of such interaction and made every
attempt to persuade this Court to accept his contention that such
interaction has breached the fairness and transparency of the
selection procedure. Learned counsel for the Petitioner fairly
admitted that the present Petitioner happens to be the daughter of
one Ullash Chandra Routray, who was an ex-employee of Govt.
Press. In course of his argument, he also referred to the fact that
some of the candidates are closely related to some officers of the
govt. press and in the said context, he also referred to a complaint
under Annexure-6 to the writ application. He also referred to the
letter under Annexure-7, issued by the Secretary, OSSC, dated
02.12.2022, pertaining to the illegal training in Odisha Govt. Press.
In course of his argument, learned counsel for the Petitioner also
raised some dispute with regard to awarding of marks including the
weightage mark. On such basis it was contended by learned counsel
for the petitioner that the conduct of the Opposite Parties creates
suspicion about the fairness of the selection procedure followed in
the present case.
16. On a careful analysis of the submissions made by learned
counsel for the Petitioner, this Court is of the observation that the
Petitioner has tried to make out the case on the basis of the counter
affidavit filed by the Opposite Parties although the same were not
originally pleaded in the writ petition by the Petitioner. However,
on a careful analysis of the submissions made and taking into
consideration the entirety of the allegation with regard to selection
process, this Court thought it proper to call for the entire record of
the selection process and to examine the same. Accordingly,
records pertaining to the selection process were produced before
this Court and have been duly examined in course of hearing.
17. Finally, learned counsel for the Petitioner submitted that the
Rule 11 of the Rules, 1978 provides for direct appointment through
recruitment process. Moreover, the said rule provides that once the
selection list is drawn up, the same will remain valid for one year.
He further contended that the Petitioner has collected information
through an application under the RTI Act to the effect that there are
18 nos. of vacancies in the post of Copy Holder at Odisha Govt.
Press. Therefore, it was contended that since the Petitioner is
eligible for such appointment, her case be considered against such
18 nos. of post of Copy Holder which are lying vacant. It was also
contended that in the meantime two Copy Holders have been given
promotion thereby increasing the number of vacancies number has
increased to 20. It was also submitted that one of the selected
candidates namely, Rosana Swain, is ineligible to be appointed in
view of the irregularities in her certificate and as such the case of
the Petitioner can very well be considered against such available
vacancies.
18. On the basis of the facts pleaded in the writ petition as well
as referring to the averments made in the counter affidavit, learned
counsel for the Petitioner addressed this Court on the following
broader issues; I) Whether allowing Opposite Party Nos.9, 10 & 11,
who were trained by the Head Reader in press, to participate in the
recruitment vitiates the selection process? II) Whether
advertisement made is contrary to the Rules, 1978 and as a result
whether such selection process is unsustainable in law? III)
Whether the principle of "Approbate and Reprobate" applies to the
facts of the present case? IV) Whether the role of Mr. Nehru
Dhamel can be ignored in the matter of selection of his ex-students
i.e. Opposite Party Nos.9, 10 & 11? V) Whether the vacancies
existing and/ or arising during one year on and from the date of
selection can be filled up as per Recruitment Rules? VI) Whether
selection of Opposite Party Nos.7 and 9 can be sustained in spite of
their submitting Education Certificate which is unsustainable in the
eyes of law?
19. In course of his argument, learned counsel for the Petitioner
referred to the judgment of the Hon'ble Supreme Court in Asish
Kumar vs. The State of Uttar Pradesh and others reported in
(2018) 3 SCC 55. By referring to the aforesaid judgment, learned
counsel for the Petitioner laid emphasis that in a case where the
advertisement and the statutory rules are at variance, the statutory
rules would take precedence. In the aforesaid context, learned
counsel for the Petitioner specifically referred to educational
qualification of the candidates for the post of Copy Holder as
provided in the advertisement as well as in the statutory rules. He
further contended that although in the statutory rules of the year
1978, which was in force at the time of selection, the educational
eligibility criteria was prescribed as HSC pass, however, the same
was subsequently modified in the advertisement so as to reflect the
educational eligibility criteria as a graduate in any discipline.
Similarly, he also relied upon the judgment of the Hon'ble Supreme
Court in the matter of Malik Mazhar Sultan and anr. vs. U.P.
Public Service Commission and others reported in (2010) 3
SCALE 342. By referring to the aforesaid judgment, learned
counsel for the Petitioner laid emphasis on the finding of the
Hon'ble Supreme Court to the effect that "undoubtedly, the
excluded candidates were of eligible age as per the advertisement,
but the recruitment to the service can only be made in accordance
with the Rules and the error, if any, in the advertisement cannot
override the Rules and create a right in favour of a candidate if
otherwise not eligible accordingly to the Rules." In the above noted
judgment the Hon'ble Supreme Court has finally come to a
conclusion that those candidates who were eligible as on
01.07.2002 and on 07.07.2004 would be eligible to be considered
for appointment to the post of Civil Judge (Jr. Division).
Accordingly, the appeals were allowed.
20. He also referred to the judgment of the Hon'ble Supreme
Court in Sachin Kumar & ors. vs. Delhi Subordinate Service
Selection Board reported in 2021 (4) SCC 631 to emphasize on the
point that Article 14 and 16 mandates that the selection process
conducted by the public authorities to make recruitment have to be
fair, transparent and accountable. On a careful reading of the
aforesaid judgment, this Court is of the considered view there exists
no quarrel with regard to the proposition laid down by the Hon'ble
Supreme Court in the above noted judgments and that the basic
requirement of any selection process is that it should be fair,
transparent and accountable. Further, while examining the facts of
the present case, this Court shall keep in mind the aforesaid
principle.
21. Mr. Budhadev Routray, learned Senior Counsel appearing
on behalf of the Opposite Party Nos.9 to 15 at the outset contended
that the selection process followed by the OSSC is fair, transparent
and proper. He further contended that the Petitioner has failed to
make out any case to impeach the fairness and transparency of the
selection process followed by the OSSC. It was also contended that
pursuant to the advertisement under Annexure-1 the candidates
participated in the recruitment process which was conducted by an
independent recruitment agency i.e. OSSC. The OSSC conducted
the examination on the basis of the relevant recruitment rule as well
as the terms and conditions mentioned in the advertisement under
Annexure-1. On the basis of the assessment of inter-se merit of the
candidates, who participated in the recruitment process, a final
select list was published. Since, the name of the Petitioner did not
find place in the final select list, being aggrieved by such fact the
Petitioner has filed the present writ application. Learned Senior
Counsel appearing for the Opposite Party Nos.9 to 15 at the outset
contended that having participated in the selection process pursuant
to the advertisement and on failing to qualify in the recruitment test,
the Petitioner has challenged the terms of the advertisement as well
as the entire recruitment process. He further submitted that it is not
the case of the petitioner that she had raised any objection/ protest
at the first instance. It is only after failing to qualify in the
recruitment test, the Petitioner has approached this Court by filing
the present writ application.
22. In course of his argument, learned Senior Counsel
appearing for the Private-Opposite Party Nos.9 to 15 contended that
initially the Petitioner did not challenge the advertisement under
Annexure-1 in her writ petition. She had only challenged the
selection process on the ground of alleged illegalities in the process
of selection. Referring to the allegations made in the writ petition,
learned Senior Counsel submitted that the additional affidavit filed
by the Opposite Party No.4 is very clear in this regard. The
Opposite Party No.4 in its additional affidavit has categorically
stated that no weightage of preference was given to any of the
selected candidates except Opposite Party No.7, who was placed at
Sl. No.3 of the select list dated 28.11.2022 and as such was selected
under UR (M) category. So far the present Petitioner is concerned,
he further contended that the Petitioner had secured 75.5 marks out
of a total of 150 marks. Whereas, the last selected candidate under
UR (W) category i.e. Opposite Party No.10 had secured 79.5 marks
which is definitely higher than the mark secured by the present
Petitioner.
23. With regard to the educational qualification required for the
post of Copy Holder, learned Senior Counsel for the private-
Opposite Party Nos.9 to 15 submitted that the advertisement
provided that a candidate must be a bachelor in any discipline and
that candidate having National Trade Certificate/ National
Apprentice Certificate and Printing Trade shall be given preference
in form of weightage mark @5% of the mark secured in the written
examination. He further contended that the Petitioner having
bachelor degree was eligible to participate in the selection process
and accordingly she participated in such process along with all
other eligible candidates. Since the eligibility is not an issue with
the present Petitioner and she was allowed to participate in the
recruitment process, it is not open to the Petitioner to question the
eligibility criteria in the present writ application. Although, a
candidate not possessing graduate degree and having the HSC
qualification could challenge the advertisement fixing a higher
eligibility criteria. In any case, since the Petitioner is not aggrieved
by the fixation of such higher qualification and in the absence of
any such aggrieved candidates having come forward to challenge
the educational qualification clause in the advertisement, the issue
raised by the Petitioner with regard to educational qualification is
redundant.
24. With regard to preferential treatment or weightage mark,
learned Senior Counsel appearing for the Opposite Party Nos.9 to
15 submitted that no candidate has been given preference except
Opposite Party No.7. It was also argued that word "preference"
connotes that when one or more candidates are found to be equally
positioned, only the additional qualification criteria can be taken as
a deciding factor while preparing the merit list. Such additional
factor guiding selection of one candidate from amongst equally
positioned candidates may be considered as preference. However,
preference does not mean en bloc preference irrespective of inter-se
merit and suitability. He further contended that in view of the
settled position of law, the selected candidates shall not be made to
suffer without any mistake on their part particularly when the
fairness and transparency of such selection process remains
unimpeached.
25. Learned Senior Counsel appearing for the Opposite Party
Nos.9 to 15 referred to the judgment of this Court in Subhashree
Sundar Ray vs. State of Odisha and others in W.P.(C) No.14640
of 2022 decided on 28.06.2023. By referring to the aforesaid
judgment, learned Senior Counsel contended that fixing a higher
qualification is not a bar. He also referred to the judgment of the
Hon'ble Supreme Court in the matter of Tajvir Singh Sodhi v.
State (UT of J&K) reported in 2023 SCC OnLine SC 344. In the
context of a candidate having participated in the recruitment
process without any protest to the same, such candidate is estopped
from challenging the same at subsequent stages. In the aforesaid
context, he also referred to the judgment of this Court in Siva
Prasad Panda vs. State of Odisha & ors. in W.P.(C) No.13681 of
2022 and a batch of similar other matters decided on 20.09.2022
and Ranjan Kumar & ors. vs. State of Bihar & ors. reported in
2014 16 SCC 187. Similarly, reliance was also placed on AIR 2008
SC 1913 (Dhananjay Malik & ors. vs. State of Uttaranchal & ors.)
to persuade this Court that the Petitioner having participated in the
selection process without any protest with regard to the terms and
conditions contained in the advertisement, upon his failure to be
selected finally, the Petitioner is estopped from turning back and
challenging the advertisement as well as the selection process.
26. Mr. Routray, learned Senior Counsel appearing for the
private-Opposite Party Nos.9 to 15 also emphatically contended
that the private-Opposite Parties having been selected through a
valid, fair and, transparent selection process conducted by OSSC
should not be made to suffer without any mistake on the part of the
private-Opposite Parties. In the aforesaid context, he also referred
to the judgment of the Hon'ble Supreme Court in Vikas Pratap
Singh and ors. vs. State of Chattisgarh & ors. reported in AIR
2013 SC 3414, as well as in the matter of Anmol Kumar Tiwari &
ors. vs. State of Jharkhand & ors. reported in AIR 2021 SC 1139.
Finally, on the issue or preference and merit, learned Senior
Counsel for the Opposite Party Nos.9 to 15 relied and referred to
the judgment of the Hon'ble Supreme Court in State of UP and
others vs. Om Prakash & ors. reported in (2006) 6 SCC 474.
27. Mr. B.K. Dash, learned counsel appearing for the Opposite
Party Nos.7 and 8 supported and adopted the arguments advanced
by Mr. Routray, learned Senior Counsel appearing on behalf of
Opposite Party Nos.9 to 15. Mr. Dash, learned counsel for the
Opposite Party Nos.7 and 8, at the outset contended that the
Petitioner having read and fully understood the terms and
conditions mentioned in the advertisement and possessing the
eligibility criteria of a bachelor degree, participated in the selection
process along with other similarly situated candidates. Mr. Dash,
learned counsel also repeated the arguments advanced by Mr.
Routray, learned Senior Counsel for private-Opposite Party Nos.9
to 15 and submitted that the cutoff mark for UR (W) category was
79.5 whereas the Petitioner having participated in the recruitment
process secured only 75.5 marks out of 150 marks. Therefore, he
further contended that having failed to secure the required mark for
selection and appointment as a Copy Holder, the Petitioner has
turned back and has filed this writ application questioning the
selection process. He further submitted that in view of the settled
position of law, it is no more open to the Petitioner to question the
selection process or the terms of the advertisement after having
participated in the said selection process and upon her failure to be
selected for the post which was advertised under Annexure-1 to the
writ application.
28. So far the selection process is concerned, Mr. Dash, learned
counsel submitted that the same consists of three stages. Stage-I is
the written examination, Stage-II is the Professional Trade Test
(Practical), and finally the Stage-III consists of certificate
verification. He further contended that after going through the
aforesaid three stages, the Opposite Party Nos.7 and 8 were found
selected as they have secured more marks than the Petitioner and
accordingly their names were notified on 14.10.2022. He further
submitted that the allegations made by the Petitioner in respect of
the candidates who had undergone training at the Odisha Govt.
Press are vague and baseless. He further specifically argued that the
photographs produced by the Petitioner do not reveal the presence
of the Opposite Party Nos.7 and 8. So far the complaint under
Annexure-6 of the writ petition is concerned, it was contended that
the same includes the name of the Petitioner at Sl. No.3. Therefore,
it was submitted that such allegations that attempt to impeach the
fairness and transparency of the selection procedure are absolutely
irrelevant and baseless. He further argued that the present writ
application has been filed by the Petitioner out of her frustration
after failing to be selected for appointment to the post of Copy
Holder. It was contended that the present writ application is
therefore based on completely baseless and vague allegation and
wastes the valuable time of this Court. Learned counsel for the
Opposite Party Nos.7 and 8 referred to the judgment of the Hon'ble
Supreme Court in the matter of Om Prakash Shukla vs. Akhilesh
Kumar Shukla reported in AIR 1986 SC 1043 and Dr. Pratima
Sarangi vs. Commissioner-cum-Secretary to Govt. of Odisha &
ors. reported in 2019 (Supl) OLR 300.
29. This Court on perusal of the judgment in Pratima
Sarangi's case (supra) is of the observation that the same was
rendered by the Coordinate Bench of this Court wherein the
candidate, having participated in the process of selection and
having failed to secure the appointment, had approached this Court
by filing a writ application with a prayer for quashing the selection
of the Opposite Parties in that case. The learned Coordinate Bench
after elaborate discussion of the factual background of the present
case has observed that the Petitioner having participated in the
process of selection and having failed to come out successful,
cannot turn around and challenge the same. Accordingly, the writ
petition was dismissed.
30. A counter affidavit has also been filed Opposite Party
Nos.1 & 3. In the said counter affidavit, it has been stated that the
Directorate of Printing, Stationary and Publication of Odisha is
facing immense hardship to cope with the existing work load of
printing work due to shortage of manpower in the post of Copy
Holder. It has also been stated that out of a total sanctioned post of
20 numbers of Copy Holder at present only 2 Copy Holders are
available. Taking into consideration the aforesaid difficulty, the
Empowered Committee in its meeting held on 05.10.2018 approved
the decision to fill up 9 vacant posts of Copy Holder and
accordingly, the OSSC was moved to initiate the selection process
to fill up the vacant posts. It has also been stated that the OSSC
after conducting the selection process, finally notified the name of
the valid selected candidates on 28.11.2022. It has also been
contended that the OSSC has selected 9 Copy Holders on the basis
of the requisition made by Opposite Party No.3. It has been
categorically asserted that no malpractice was adopted by any of the
candidates in course of the selection process and that the selection
was entirely fair and transparent. It was also contended that the
advertisement was given wide publicity and candidates equal to
thrice the total number of posts were selected through the written
examination and were asked to appear in Professional Trade Test
which is Stage-II. Accordingly, 26 candidates including the
petitioner as well as private-Opposite Parties participated in Stage-
II of the selection process.
31. The counter affidavit of Opposite Party Nos.1 & 3 further
reveals that pursuant to the request of OSSC vide their letter dated
27.10.2022, Shri Nehru Dhamel, Joint Director and Shri Prabodh
Kumar Patnaik, Deputy Director of the Directorate were nominated
as members of the Professional Trade Test Board vide letter dated
05.11.2022. The Opposite Party No.3 has categorically denied any
training programme having been arranged in the reading branch of
the Govt. Press before the practical examination was conducted by
the OSSC for the post of Copy Holder. However, it has been
admitted in the counter affidavit that some of the ex-students of
School of Printing and Allide Trades, Cuttack had met the Head
Readers of Press Proper Unit during recreational hours and
enquired about the duties and responsibilities of the Copy Holder
and such interaction was confined to a verbal questionnaire.
32. With regard to Rules, 1978, the counter affidavit of
Opposite Party Nos.1 & 3 further reveals that the said rule came
into force w.e.f. 22.01.1978. Furthermore, although the printing
technology has undergone significant changes in the meanwhile
owing to various sophisticated new machines and latest technology,
however, the said rule was never amended and as such the criteria
with the regard to the requisite educational qualification for the post
of Copy Holder remained unchanged for several decades. It has also
been stated that taking into account the need of the modern printing
technology, the educational qualification for the post of Copy
Holder was duly reviewed and modified as per the recommendation
of the Committee constituted by the Directorate as well as the
suggestions by such Committee in its meeting held on 21.08.2020.
Accordingly, a proposal was sent to the Govt. vide letter dated
09.10.2020 requesting amendment to the Rules, 1978. Furthermore,
Govt. of Odisha in Commerce Dept. vide letter dated 04.03.2023
was pleased to approve the modification in respect of educational
qualification and experience for recruitment to Group-C Industrial
posts. Further, it is revealed that there exists no provision in the
Rules, 1978 for awarding weightage/ preferential mark to the
holders of National Trade Certificate. Since, the OSSC found it
difficult to assess the candidates and award weightage/ preferential
mark to said candidates, the OSSC suggested in its meeting held on
21.08.2020, that preference cannot be quantified when deciding the
inter-se merit position of the candidates selected through the
recruitment process. Therefore, it was decided the merit list shall be
decided on the basis of the marks secured by the candidates in the
written examination and the Trade Test. Accordingly, the
Commission suggested giving preference in the shape of weightage
marks of 5 % of the mark secured in the written examination to the
candidates having NTC/ NAC certificate in the printing trade. It has
also been stated that the Petitioner was allowed to participate in the
recruitment process since she satisfied the eligibility criteria fixed
in the advertisement published by the OSSC.
33. The counter affidavit of the Opposite Party Nos.1 & 3
further reveals that the Joint Director of Directorate of Printing,
Stationary & Publication, Cuttack is the Vice-Principal of the
School of Printing and Allide Trades, Cuttack (SPAT). As such it
has been stated that all students of SPAT are ex-students of Vice-
Principal. Furthermore, it has also been stated that all candidates
who got selected, as well as those who were not selected, are the
ex-students of the Vice-Principal i.e. the Joint Director of
Directorate of Printing, Stationary & Publication, Cuttack. It has
also been categorically asserted in the counter affidavit that no
practical training whatsoever was imparted to the selected
candidates in the Government Press apart from a brief interaction
with the Head Reader during recreational hours as has been
admitted in the said counter affidavit.
34. The recruiting agency i.e. Odisha Staff Selection
Commission has also filed a counter affidavit through its Secretary-
in-Charge. In the said counter affidavit, the Opposite Party No.4 has
stated that upon receipt of the requisition from the Opposite Party
No.3, the advertisement under Annexure-1 was published to fill up
the vacancies as mentioned in the said advertisement. Such
vacancies also include 9 vacancies in the post of Copy Holder. Out
of the 9 vacancies, 3 posts were horizontally reserved for Women
Category. The Petitioner was a candidate for the post of Copy
Holder. The counter affidavit further reveals that the Petitioner
qualified in the main written examination and practical trade test.
Thereafter, she appeared in the certificate verification process. The
Petitioner had secured a total of 75.5 marks whereas the mark
secured by the last selected candidate in her category is 79.5 marks.
Since, she has secured less marks than the last selected candidate,
the Petitioner's name was not included in the final merit list.
35. The counter affidavit of the Opposite Party No.4 further
reveals that the advertisement was published on the basis of the
requisition made by the Opposite Party No.3. Such advertisement
categorically provides the educational qualification and other
eligibility criteria such as additional age relaxation etc. It has also
been stated that the draft advertisement was sent to the office of the
Opposite Party No.3 and the Opposite Party No.3 after receiving
the same, has returned the draft advertisement to the Commission
vide letter dated 13.08.2020 wherein certain modifications in the
draft advertisement were suggested. Thereafter, on the basis of the
proposal of the Opposite Party No.3, the Opposite Party No.4
conducted a meeting on 21.08.2020 with regard to awarding of
weightage mark. The counter affidavit elaborately narrates the
procedure followed during the process of selection. They have also
stated that the delay in the recruitment process was due to the
slowdown of the process during the Covid-19 pandemic. Finally, on
09.12.2021, the Opposite Party No.4 published the advertisement
inviting application from the eligible candidates. The last date of
submission of application was extended on a couple of occasions
taking into consideration the inconvenience faced by the candidates
and to facilitate the candidates who have failed to upload their form
on the online portal. It has been categorically stated in the counter
affidavit that the Opposite Party No.3 has followed a fair,
transparent selection process while conducting the recruitment test
for the posts which were advertised under Annexure-1.
36. The counter affidavit of Opposite Party No.4 further
reveals that no examination plan has been prescribed in the
recruitment rules. As per Rule-13 of OSSC Amendment Rules,
2015, the Commission has decided the plan and pattern of
examination in consultation with the requisitioning authority. Rule-
13 provides that where no syllabus or pattern prescribed in the
relevant rules, the Commission shall decide the same in-
consultation with the concerned department or the Govt. As such,
the plan of examination was finalized in consultation with the
requisitioning authority i.e. Opposite Party No.3. It has been
categorically stated that although the Petitioner, who was eligible,
was allowed to participate in the recruitment process, however, at
no point of time has the Petitioner raised any objection with regard
to any stipulation as well as with regard to the selection process
notified in the advertisement. The Petitioner participated in the
recruitment process having accepted and agreed to the terms and
conditions laid down in the advertisement under Annexure-1. It
further reveals that the Opposite Party No.4 received total 91
applications for the post of Copy Holder out of which total 41 was
found to be valid. Accordingly, 35 candidates out of 41 candidates
appeared in the written examination held on 18.06.2022. After the
first stage of selection was over, a select list consisting of 25
candidates including the Petitioner was published on 14.10.2022.
Where after they were asked to appear before the Professional
Trade Test Board. Such Boards were constituted consisting of
several members including one Technical Member from the related
field. Accordingly, for the post of Copy Holder, Shri Nehru
Dhamel, Joint Director was nominated as a member of the
Professional Trade Test Board. Otherwise also, the OSSC in view
of Rule-3 (10) of the Rules, 1993 is empowered to nominate any
expert to such boards.
37. The counter affidavit of the Opposite Party No.4 further
reveals that the candidates appeared before the Board on
15.11.2022. It is further revealed that the Petitioner had secured 44
marks in the written examination and was awarded 31.5 marks in
the professional trade test. As such the Petitioner has secured a total
of 75.5 marks out of marks of 150, which is admittedly less than the
last candidate, who has secured 79.5 marks. Further, the
Commission admitted that as per the recommendation of the
requisitioning authority, the minimum educational qualification was
fixed as Bachelor's Degree in any discipline with proficiency in
English Grammar and Composition. With regard to the preference,
it has been categorically stated that a common formula was evolved
for all the candidates to quantify the weightage by awarding 5% of
the mark secured in the written examination to the candidates
having NTC/ NAC certificates. A common standard was applied to
all the candidates who had participated in such recruitment process
and none of the candidates have raised any doubt with regard to the
standard procedure adopted by the recruiting agency.
38. After finalization of the selection process, the Commission
on 17.11.2022 notified 26 candidates for the post of Copy Holder
and they were called upon to appear in the certificate verification
which was conducted on 23.11.2022 in the office of Opposite Party
No.4. After verification of certificate, the final select list was
published on 14.10.2022 under Annexure-3 in order of merit
category-wise (Trade-wise) by taking into consideration the total
mark secured by each candidate who were called upon to
participate in certificate verification process. Since, the Petitioner
was found to have secured less mark than the last candidate in her
category, she has not been selected and her name was not been
included in the final selection list. With regard to the complaint
lodged by one Bipin Behera, the Opposite Party No.4 has stated
that the same has been considered by the Commission and a report
has been called from the Opposite Party No.3.
39. Mr. Swain, learned counsel appearing for the OSSC
(Opposite Party No.4) emphatically argued that the Opposite Party
No.4 conducted the recruitment test in a fair and transparent manner
and that no fault can be found in any of the actions taken by the
Opposite Party No.4. He further submitted that absolute
transparency was maintained throughout the selection process and
that the entire selection process was done under the surveillance of
the CCTC and the same has been video-graphed. He further
contended that the entire selection process was carried out strictly
in terms of the conditions laid down in the advertisement under
Annexure-1 to the writ application. It was also contended that since
the petitioner failed to secure the required marks for being selected
and appointed as a Copy Holder, her name was not included in the
final merit list. On such grounds, Mr. Swain, learned counsel
appearing for the OSSC submitted that the Opposite Party No.4 has
not committed any illegality while conducting the selection process.
As such it was submitted that the averments made in the writ
application are all vague and baseless. He further contended that the
allegations made with regard to the bias is also equally baseless as
the Petitioner has failed to produce any specific material to
establish that there exists any likelihood of bias in the entire
selection process.
40. Having heard Mr. Dayananda Mohapatra, learned counsel
appearing for the Petitioner, Mr. Budhadev Routray, learned Senior
Counsel appearing for the Opposite Party Nos.9 to 15, Mr. B.K.
Dash, learned counsel appearing for the Opposite Party Nos.7 and
8, Mr. Sanjib Swain, learned counsel appearing for the OSSC-
Opposite Party No.4 and learned Additional Standing Counsel for
Opposite Party Nos.1 & 3. Further, on a careful analysis of the
factual background of the present case as has been elaborately
discussed hereinabove and on perusal of the pleadings as well as
materials on record and, the records pertaining to the entire
selection process which were produced by Mr. Swain, learned
counsel appearing for OSSC, this Court is required to scrutinize the
entire selection process as well as assess the validity of the final
select list prepared by the Opposite Party No.4.
41. Before arriving at any conclusion on the basis of the
aforesaid analysis of the fact as well as the law, this Court would
like to reflect its observation with regard to the records produced by
the Recruiting Agency-Opposite Party No.4. On perusal of the
records pertaining to the selection of and recruitment two different
Group-C posts as per the advertisement under Annexure-1, this
Court observes that the entire selection process has been well
documented by the Opposite Party No.4. Finally, the select list
notified for the 9 posts of Copy Holder reveals that 3 persons
namely, Susanta Kumar Nayak, Raj Prakash Nayak and Satya
Ranjan Nayak, who have secured 105.75, 104.5 and 96.2 marks,
were finally selected under UR (M) category. Similarly, three
persons were selected for UR (W) category, namely, Chinmayee
Mohapatra, Rosana Swain, Chinmayee Mohapatra, who have
secured 90, 82 and 79.5 marks respectively. In respect of the SEBC
category, two candidates were finally selected, namely, Hemanta
Kumar Palei and Milan Mohanty, who have secured 96 and 94.5
marks respectively. For the sole post of ST Category one
Balabhadra Dehury was selected, who has secured 57 marks. On
perusal of the record it appears that only one candidate has been
awarded the weightage mark. One Satya Ranjan Nayak, whose
name appears at Sl. No.3 of UR (M) category, has been awarded
2.7 marks as weightage mark. Further taking into consideration a
total mark secured by the above named candidate i.e. 96.2 marks.
This Court is of the considered view even if the weightage mark is
deducted, the above named Satya Ranjan Nayak would have
secured more marks than the present Petitioner. Moreover, the
above named Satya Ranjan Nayak falls under a different category,
there is no challenge to his selection in the present writ application.
With regard to the UR (W) category, which is the subject matter of
dispute in the present writ application it appears none of the
candidates have been awarded any weightage mark. Furthermore, it
appears that the selected candidates have secured 90, 82 and 79.5
marks respectively. Whereas the record reveals that the Petitioner
has secured 75.5 marks. Therefore, it is the admitted position that
the Petitioner has failed to secure more marks than the marks
secured by the last candidate of her category i.e. Chinmayee
Mohapatra at Sl. No.13. Additionally, in the combined merit list of
all 26 candidates, who have appeared for the certificate verification,
the petitioner's name appears against Sl. No.15. Furthermore, three
posts were horizontally reserved for UR (W) category. On a careful
scrutiny of the combined merit list of all 26 candidates it appears
three candidates belonging to the UR (W) category, have secured
more marks than the Petitioner. It is pertinent to mention here that
there exists some dispute with regard to the certificate submitted by
one of the three candidates in the UR (W) Category, i.e. Rosana
Swain, at Sl. No.12 of the merit list, who has secured 82 marks.
Finally, on a careful scrutiny of the entire record, this Court is of
the considered view that no irregularities and illegalities were found
either in the record or in the entire selection process.
42. The next question that falls for consideration in the present
writ application is with regard to the fixation of the minimum
educational qualification. No doubt, in view of the provisions
contained in Rules, 1978. the minimum educational qualification
was HSC pass. However, the same was revised on the
recommendation of the Empowered Committee and a
recommendation was sent to the Govt. to amend the rules.
However, such amendment was not carried out till the entire
selection process was over. Considering the fact that the
Empowered Committee had suggested modification in the
minimum educational qualification keeping in view the change in
technology and the demand of time, the Opposite Parties have not
committed any illegality in suggesting for modification of the
educational qualification. Even otherwise also there is no bar to
modify the educational qualification and in many judgments of the
Hon'ble Supreme Court as well as of this Court it has been held
that prescribing a higher educational qualification for any post in
any recruitment process is not illegal provided the relevant rules
support the same. In the present case, this Court observes that
although the recommendation was made for enhancing the
educational qualification to Bachelor's Degree in any discipline,
however, by the time the selection was carried out the rule was not
suitably amended. Moreover, the advertisement clearly prescribes
the minimum educational qualification and on such basis 91
candidates submitted their application. So far the present Petitioner
is concerned, she was having a graduate degree therefore she was
eligible and accordingly she was allowed to participate in the entire
recruitment process. In such view of the matter, this Court has no
hesitation in coming to a conclusion that no prejudice has been
caused to the Petitioner even though the Rule was suitably amended
and as such it is not open to the petitioner to challenge the
advertisement and the educational qualification prescribe therein. In
such view of the matter, the aforesaid issue raised by learned
counsel for the Petitioner does not call for consideration in the
present writ application. The next and very relevant question which
requires adjudication in the present writ application is, whether it is
open to the Petitioner to challenge the recruitment process and the
advertisement after having participated in such recruitment process,
more so, when no protests/ objections were raised at any stage of
the entire selection process and after having accepted the terms and
conditions as laid down in the advertisement. In this regard, this
Court would like to refer the latest judgment of the Hon'ble
Supreme Court in Tajvir Singh Sodhi v. State (UT of J&K)
reported in 2023 SCC OnLine SC 344, wherein the selection
process for appointment of drug inspectors in the then State of
Jammu and Kashmir, and the appointments published thereunder
were in issue, the Hon'ble Apex Court after a detailed analysis of a
catena of cases relating to the issue of challenge to the selection
process after having participated in the same, have held in paras-69
& 70 of the judgment that:-
69. It is therefore trite that candidates, having taken
part in the selection process without any demur or
protest, cannot challenge the same after having been
declared unsuccessful. The candidates cannot approbate
and reprobate at the same time. In other words, simply
because the result of the selection process is not
palatable to a candidate, he cannot allege that the
process of interview was unfair or that there was some
lacuna in the process. Therefore, we find that the writ
petitioners in these cases, could not have questioned
before a Court of law, the rationale behind recasting the
selection criteria, as they willingly took part in the
selection process even after the criteria had been so
recast. Their candidature was not withdrawn in light of
the amended criteria. A challenge was thrown against the
same only after they had been declared unsuccessful in
the selection process, at which stage, the challenge ought
not to have been entertained in light of the principle of
waiver and acquiescence.
70. This Court in Sadananda Halo has noted that
the only exception to the rule of waiver is the existence of
mala fides on the part of the Selection Board. In the
present case, we are unable to find any mala fide or
arbitrariness in the selection process and therefore the
said exception cannot be invoked.
In view of the aforesaid analysis, this Court is of the
considered view that the law laid down by the Hon'ble Supreme
Court in respect of the aforesaid issue in Tajvir Singh Sodhi's case
(supra) is fully applicable to the facts of the present case.
Accordingly, this Court has no hesitation in coming to a conclusion
that the Petitioner is estopped from challenging the advertisement
and the conditions laid down therein after having participated in the
recruitment process, and particularly when she has failed to qualify
for appointment to the post of Copy Holder.
43. Indisputably, fairness and transparency is the foundational
stone upon which any selection/ recruitment process is based.
Observance of fairness and transparency in the selection process is
drawn from Article-14 and 16 of the Constitution of India.
Therefore, any selection/ recruitment process to remain valid in
law, must stand the test and scrutiny of fairness and transparency.
So far the present case is concerned, this Court has analyzed the
facts as presented before this Court with regard to the observance of
fairness and transparency in the selection process. On perusal of the
records as well as the counter affidavit and the statements made by
learned counsel appearing for the OSSC, this Court is of the view
that the entire selection process was conducted under CCTV
surveillance and by providing equal opportunity to the aspiring
candidates. The records further reveal that the entire process of
selection has been well documented. Moreover, the Petitioner has
not raised any objection with regard to the process of evaluation
and the marks secured by her. On a comparative analysis of the
marks secured by the candidates belonging to the Petitioner's
category i.e. UR (W) category, it was observed that the Petitioner
has secured less marks than the three candidates whose names have
been recommended for appointment by the recruiting agency.
Furthermore, the petitioner has admittedly secured 4 marks less
(75.5 marks) than the marks secured by the last candidate of UR
(W) category i.e. 79.5 marks. It was further observed that no
weightage mark has been given to any of the candidates in UR (W)
category. Thus, the preparation of the final select list in no manner
infringes the fairness and transparency requirement of the selection
procedure.
With regard to the allegations made against the Joint
Director, namely, one Nehru Dhamel, this Court examines the
records as well as the pleadings of the respective parties. The
counter affidavit filed by Opposite Party Nos.1 & 3 as well as
Opposite Party No.4 explains the entire ground realities as well as
the role of above named Nehru Dhamel. Merely because of the fact
that the above named Nehru Dhamel, while working as the Joint
Director, was also the Vice-Principal of SPAT and the inclusion of
his name in the Trade Test Board does not make the constitution of
Board invalid. The Petitioner has miserably failed to bring on
record any specific material to establish either any bias or any
likelihood of bias on the part of above named Joint Director.
Moreover, mere interaction with the Head Readers of the Press
Proper Unit of some of the candidates does not conclusively
establish the element of bias in the process of selection as alleged
by the Petitioner. Considering the selection process in its entirety
this Court is of the considered view that the Petitioner has failed to
prove that there was any bias or any likelihood of bias in the
selection of process.
44. As has been discussed hereinabove, on a careful scrutiny of
the final merit list, this Court is of the considered view that since
the Petitioner has failed to secure the marks for being selected and
appointed as a Copy Holder, her name has not been rightly included
in the final merit list. It further appears that she had secured 75.5
marks and that the last candidate in UR (W) category had secured
79.5 marks. Although it appears that there exists some dispute with
regard to the selection of one candidate in UR (W) category i.e. one
Rosana Swain, who had secured 82 marks and it also appears that
no final decision has been taken with regard to the selection of
above named, Rosana Swain, in the event, the above named Rosana
Swain, is found to be disqualified for selection under UR (W)
category, then automatically, the Petitioner would get chance for
being selected and appointed as a Copy Holder. In such view of the
matter, this Court while holding that the present writ application is
devoid of merit and accordingly dismissing the same, would like to
allow the connected writ application bearing W.P.(C) No.2158 of
2024. Accordingly, it is directed that the Petitioner in W.P.(C)
No.2158 of 2024 be given appointment as expeditiously as possible
preferably within a period of six weeks from the date of
communication of a certified copy of this judgment. So far the
present Petitioner is concerned, the Opposite Parties are directed to
take a final decision with regard to the candidature of above named
Rosana Swain and in the event it is found that the above named
Rosana Swain is disqualified on any ground, then the name of the
present Petitioner be included in the final select list and her case be
considered for appointment to the post of Copy Holder. However,
in the event the above named Rosana Swain is found eligible, then
it is open to the Opposite Parties to consider the case of the
Petitioner as against the vacant posts as it is evident from record
that there are several posts of Copy Holder still lying vacant.
45. With the aforesaid observations, the writ application
W.P.(C) No.34888 of 2022 is dismissed and W.P.(C) No.2158 of
2024 is allowed, however, there shall no order as to cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 28th June, 2024/ Anil, Jr. Steno
Location: High Court of Orissa
Date: 03-Jul-2024 11:38:37
