Orissa High Court
Indradyumna Swain vs State Of Odisha & Ors. .... Opposite ... on 8 January, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
` IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22336 of 2024
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Indradyumna Swain .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Jitendra Kumar Lenka, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-23.12.2024
DATE OF JUDGMENT:- 08.01.2025
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the petitioner is challenging the proceedings of the
District Selection Board dated 26.04.2024, the consequent appointment
of the Opposite Party No. 6, and his deputation for training as per the
order dated 26.07.2024, on the ground that the selection was secured
through forged documents.
2. The petitioner is further seeking a direction from this Court for his
appointment and deputation for training as a Livestock Inspector, as he
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
was placed at Serial No. 2, immediately following the Opposite Party
No. 6.
I. FACTUAL MATRIX OF THE CASE:
3. The brief facts of the case are as follows:
(i) The Chief District Veterinary Officer, Puri, published an advertisement
dated 05.10.2013, in the Odia daily newspaper/ 'THE SAMAJ'/ inviting
applications from the open market for 28 posts of Livestock Inspector in
the Puri district.
(ii) The petitioner, possessing the requisite qualification of +2 in Vocational
Dairy Trade from the Government Vocational Junior College, Balanga,
in Puri district, submitted his application for the posts before the last
date.
(iii) The Government of Odisha, in the Fisheries & Animal Resources
Development (F & ARD) Department, issued a notification on
15.03.2013, amending the Odisha Veterinary Technical Service, Group-C
(Recruitment and Conditions of Service) Amendment Rules, 2013. The
amendment specified that 50% of vacancies for Livestock Inspector
training would be filled from candidates who had passed +2 Vocational
Courses in Animal Husbandry/Dairy/Poultry/Meat/Animal Production,
and the remaining 50% from Gomitra candidates who had passed +2
Science or its equivalent or completed +2 vocational courses with
satisfactory performance in Artificial Insemination activities. In the
event of the non-availability of candidates from either category, the
posts would be filled by candidates from the other category on an
interchangeable basis.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
(iv) Subsequently, the selection for Livestock Inspectors in Puri district was
challenged in multiple original applications, including O.A. No. 2206
(C)/2015, before the State Administrative Tribunal by candidates
alleging non-compliance with the rules. After hearing the parties, the
Tribunal, by order dated 14.09.2016, quashed the selection, directed the
constitution of a new selection board, and ordered the preparation of a
fresh merit list.
(v) Some of the selected candidates whose selection was subsequently
quashed and filed W.P.(C) No. 19459/2016 before this Court. By an
order dated 28.11.2022, this Court dismissed the Writ Petition and
upheld the decision of the Tribunal.
(vi) Subsequently, some candidates filed Contempt of Court Petition being
CONTC No.686/2023, alleging non-compliance with the Tribunal's
order. By orders dated 21.04.2023 and 18.05.2023, this Court directed the
authorities to ensure compliance with the Tribunal's order within three
months.
(vii) In a letter dated 22.05.2023, the Government of Odisha, through the
Fisheries & Animal Resources Development (F & ARD) Department,
instructed the Director, AH & VS, to comply with the Tribunal's order
by constituting a fresh Selection Board and preparing a new merit list.
Subsequently, on 29.05.2023, the Director instructed the CDVO, Puri, to
form the new board and merit list.
(viii) By letter dated 14.08.2023, the CDVO, Puri, instructed all selected
candidates to appear for certificate verification on 23.08.2023. However,
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Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
the Opposite Party No.6 was absent on the scheduled date. The
petitioner, who was listed at Serial No.2, was selected.
(ix) The Opposite Party No. 6 filed W.P. (C) No. 30284 of 2023, seeking a
rescheduled verification date, as the intimation letter was received by
him after the scheduled date. By order dated 18.09.2023, this Court
disposed of the case and directed the Collector to consider Opposite
Party No. 6's representation. In Miscellaneous Case No. 11/2024, the
Collector, by order dated 21.03.2024, directed the CDVO to set a new
date for verification and ensure that Opposite Party No. 6 was informed
well in advance.
(x) Following the verification of documents, the CDVO, Puri, issued a letter
dated 26.07.2024, appointing the Opposite Party No. 6 for Basic
Livestock Inspector Training.
(xi) The letter from the CDVO, dated 23.08.2023, indicated that the
petitioner's name appeared at Serial No. 2 under the vocational
category, while the Opposite Party No. 6 was listed at Serial No. 1. Both
had applied for the UR post in the Vocational +2 Dairy Farming
category, which was to be filled maintaining a 50:50 ratio between the
Vocational and Gomitra categories. The post for the Gomitra category
(UR M) had already been filled by Ranjan Kumar Pradhan.
(xii) The petitioner has filed the present writ petition, challenging the
proceedings of the District Selection Board dated 26.04.2024, the
consequent appointment of the Opposite Party No. 6, and his
deputation for training as per the order dated 26.07.2024, on the ground
that the selection was secured through forged certificates. The petitioner
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
seeks a direction from this Court for his own appointment and
deputation for training as a Livestock Inspector, as he was placed at
Serial No. 2, immediately following the Opposite Party No. 6.
(i)
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The petitioner contended that the Opposite Party No.6 had secured an
appointment for the post of Livestock Inspector on the strength of a
fraudulent certificate for Vocational Course in +2 in Dairy Farming.
(ii) The petitioner submitted that he had sought information under the RTI
Act from the Principal, Government Vocational Higher Secondary
School, Khandakhai, Puri District. The letter dated 16.08.2024 confirmed
that the Vocational Course in +2 Dairy Farming was introduced only in
2012. However, the Opposite Party No. 6's certificate indicated the
completion of a Vocational (+2) Inland Fishery course in 2010, under
Roll No. 912MC013 and Registration No. 202403/2008. The principal's
letter confirmed that the course on Inland Fishery existed from 2004 to
2011, while Dairy Farming was recognized only from 2012, indicating
that the certificate in Dairy Farming was fraudulent.
(iii) The petitioner further submitted that information obtained under the
RTI Act on 30.07.2024 from the CDVO revealed that the Opposite Party
No. 6 secured 511 marks in 2010 at Govt. Vocational Junior College,
Kandakhai, with the trade subject listed as Dairy. However, records
from the principal indicated that his course was Inland Fishery (IF). The
Opposite Party No. 6 never passed the Dairy Farming course, which
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
was a necessary qualification for the Livestock Inspector post. As a
result, his appointment based on a fraudulent certificate is liable to be
quashed.
(iv) The petitioner submitted that, according to the intimation letter dated
23.08.2023 from the CDVO, he was placed at Serial No. 2 while
Opposite Party No. 6 was placed at Serial No. 1 under the Vocational
category. Both had applied for the UR Post in the Vocational +2 Dairy
Farming category. Since the petitioner was listed at Serial No. 2, he
should be appointed in place of Opposite Party No. 6, who was
fraudulently selected.
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
5. Per contra, the learned counsel for the Opposite Parties earnestly made
the following submissions in support of his contentions:
(i) The Council of Higher Secondary Education (CHSE), Bhubaneswar, was
requested to investigate the matter vide Letter No. 6462 dated
26.09.2024 from the CDVO, Puri. In response, Letter No. 4538 dated
09.10.2024 clarified that the 10+2 certificate bearing Registration No.
912MC013, produced by the Opposite Party No.6 during the certificate
verification process, was found to be fraudulent and fake. Subsequently,
the Opposite Party No. 6 tendered his resignation.
(ii) The Collector and District Magistrate, Puri, canceled the candidature of
the Opposite Party No. 6 in light of this finding. Furthermore,
instructions were issued for the issuance of a Show Cause Notice and
lodging of an FIR against the Opposite Party No. 6 for adopting
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
fraudulent means and producing forged documents. These instructions
have been duly executed.
(iii) In view of the cancellation of the Opposite Party No. 6's candidature,
the petitioner's prayer is devoid of merit and/ therefore/ liable to be
rejected.
IV. COURT'S REASONING AND ANALYSIS:
6. Heard Learned Counsels for the parties and perused the documents
placed before this Court.
7. It is well-settled that mere inclusion in a merit list or selection list does
not confer an indefeasible right to appointment. Inclusion in such a list
creates, at best, a legitimate expectation of appointment, subject to the
fulfillment of all required legal and procedural formalities, and the
exercise of discretion by the appointing authority.
8. In Commissioner of Police & Anr. v. Umesh Kumar1, the Supreme Court
in this regard observed as hereinunder:
" 19. The real issue, however, is whether the respondents were
entitled to a writ of mandamus. This would depend on whether
they have a vested right of appointment. Clearly the answer to
this must be in the negative. In Punjab SEB v. Malkiat
Singh [Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22 : 2006
SCC (L&S) 235] , this Court held that the mere inclusion of
candidates in a selection list does not confer upon them a
vested right to appointment. The Court held : (SCC p. 26, para
4)
'4. ... the High Court [Malkiat Singh v. Punjab SEB, 1999
SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an
error in proceeding on the basis that the respondent had got a
vested right for appointment and that could not have been
(2020) 10 SCC 448
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
taken away by the subsequent change in the policy. It is settled
law that mere inclusion of name of a candidate in the select list
does not confer on such candidate any vested right to get an
order of appointment. This position is made clear in para 7 of
the Constitution Bench judgment of this Court in Shankarsan
Dash v. Union of India [Shankarsan Dash v. Union of India,
(1991) 3 SCC 47 : 1991 SCC (L&S) 800] which reads : (SCC
pp. 50-51)
'7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates
are found fit, the successful candidates acquire an indefeasible
right to be appointed which cannot be legitimately denied.
Ordinarily the notification merely amounts to an invitation to
qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies. However, it
does not mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the candidates, as reflected at
the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this
Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subash Chander Marwaha [State of
Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 :
1973 SCC (L&S) 488] , Neelima Shangla v. State of
Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC
268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of
Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122
: 1985 SCC (L&S) 174] .' "
9. Further, law is well-settled that a candidate does not have an indefeasible
right to appointment owing to resignation or removal of the appointed
candidate. In Sudesh Kumar Goyal v. The State of Haryana & Ors., the
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
Supreme Court observed that if one of the selected candidates joins and
then resigns, it gives rise to a fresh vacancy which cannot be filled
without issuing a proper advertisement and following the fresh selection
process.
10. Recruitment processes and merit lists for Government positions fall
within the exclusive prerogative of the executive and courts must refrain
from unnecessary interference. In State of Andhra Pradesh v. D.
Dastagiri 2, the Supreme Court observed that even if the selection
process is complete and the only task remaining is to publish the select
list, candidates whose names appear on the list do not acquire a vested
right to claim appointment solely on that basis. The Court further
emphasized that if the State Government decides not to make
appointments, it is beyond the purview of the Court to compel the
government to act contrary to its policy decision.
11. In the same vein, in Tej Prakash Pathak & Ors. v. Rajasthan High Court
& Ors.3, the Supreme Court observed that placement in the select list
gives no indefeasible right to appointment. The State or its
instrumentality for bona fide reasons may choose not to fill up the
vacancies. However, if vacancies exist, the State or its instrumentality
cannot arbitrarily deny appointment to a person within the zone of
consideration in the select list.
12. In the present case, the Chief District Veterinary Officer (CDVO), Puri,
requested the Council of Higher Secondary Education, Bhubaneswar, to
(2003) 5 SCC 373
2024 SCC OnLine SC 3184
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Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
investigate the issue through Letter No. 6462 dated 26.09.2024. In
response, the Council of Higher Secondary Education, clarified in Letter
No. 4538 dated 09.10.2024 that the 10+2 certificate produced by the
Opposite Party No. 6 was fraudulent. Subsequently, the Opposite Party
No. 6 tendered his resignation, and the Collector & District Magistrate,
Puri, canceled his candidature. A show-cause notice was issued, and an
FIR was lodged against the Opposite Party No. 6 for submitting forged
documents.
13. It is, therefore, undisputed that the appointment of the Opposite Party
No.6 was fraudulent. The necessary steps have been taken to cancel his
candidature.
14. The only issue that now requires determination is whether this Court can
direct the appointment of the petitioner and his deputation for training
for the post of Livestock Inspector, based on the proceedings of the
District Selection Board dated 23.08.2023, in which the petitioner was
placed at Serial No. 2 on the selection list.
15. The aforementioned legal position clearly elucidates that a candidate
does not acquire a vested right to the post merely by virtue of his/her
name appearing in the merit list. Consequently/ the petitioner's position
in the merit list, in the absence of a waiting list, does not, by itself, entitle
him to the post of Livestock Inspector. It is not the case that no one
joined, with the petitioner being on the waiting list; rather, it is the
Opposite Party No. 6 who was initially appointed and subsequently
removed on the basis of fraud. As the Opposite Party No.6 had joined
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 15-Jan-2025 16:47:16
and was subsequently removed, this is a new vacancy. Therefore, this
Court is not inclined to direct the petitioner's appointment.
16. However, considering the facts and circumstances, it is noted that the
petitioner was previously selected for the relevant post when Opposite
Party No. 6 was absent. Opposite Party No. 6 filed W.P. (C) No. 30284 of
2023 seeking a rescheduled verification date, and by order dated
18.09.2023, this Court directed the Collector to consider the
representation of Opposite Party No. 6. Subsequently, on 26.07.2024, the
Chief District Veterinary Officer, Puri, issued a letter appointing the
Opposite Party No. 6 for Basic Livestock Inspector Training. This
indicates that the petitioner was eligible for the vacant post and may be
considered for the position, subject to the fulfillment of all procedural
requirements.
V. CONCLUSION:
17. In light of the foregoing, this Court is not inclined to direct the
appointment of the petitioner. However, the appointing authority may,
in the absence of appropriate reasons to the contrary and provided such
reasons are not arbitrary, consider the Petitioner's case for the vacant
post, subject to the fulfillment of all other relevant legal requirements.
18. Accordingly, this Writ Petition is disposed of.
19. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 8th January, 2025/
