The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13868 of 2016 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Santanu Pradhan …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. Prafulla Kumar Rath, Sr. Adv. Along with Mr. S.K. Behera, Adv. For Opposite Parties. : Mr. Ch. Satyajit Mishra, AGA Mr. A.K. Choudhury, Sr. Adv. Mr. K.K. Das, Adv. (for O.P.7) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-17.07.2023 DATE OF JUDGMENT: -24.08.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has assailed the Selection List dated 21.04.2016 wherein the opposite party No.7- Binod Pradhan has been appointed as Jogan Sahayak in Kamira Gram Panchayat under Birmaharajpur Block but has Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 1 of 11 secured less marks than the Petitioner in the 10th Class examination. I. FACTUAL MATRIX OF THE CASE: 2. On 30.03.2016 an advertisement was published for recruitment to the post of Jogana Sahayak of several Gram Panchayats in the Birmaharajpur Block under Subarnapur district. The qualification for engagement of Jogan Sahayak was that the Candidate must be a permanent resident of the G.P.; the candidate in respect of KBK District must have passed 10th Class or equivalent to matriculation; he /she must be within the age of between 21 to 35 years from the date of advertisement and if the mark/percentage will be same in matriculation among the applicant, then the higher qualification will be considered. It was also mentioned that the selection will be based on the marking for 10th Class passed or equivalent to matriculation. The salesman engaged by Gram Panchayat for dealing with PDS may be given preference over others due to their experience in the job and the upper age limit of experienced salesman as raised by 10 years i.e. from 35 years to 45 years for engagement of Jogan Sahayak. 3. The petitioner having good academic career applied for the post of the Jogana Sahayak in respect of Kamira Gram Panchayat. The private opposite party No.7 was also an Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 2 of 11 applicant to the said post. On comparative assessment of the marks secured between the petitioner and the opposite party No.7, the petitioner had secured the higher marks in comparison to his counterpart which is one of the criteria as mentioned in advertisement. However, the Opposite Party No.7 was placed at Sl.No.1 of the Selection List. Being aggrieved, the petitioner has filed this Writ Petition. II. PETITIONER’S SUBMISSIONS: 4. Learned counsel for the petitioner contended that the petitioner had secured 1st division in the 10th class (76%) whereas the opposite party had secured 2nd Division (55%). Similarly, in the +2 examination, the petitioner was on the better footing with respect to the mark than the opposite party No.7. He further contended that if at all the experience of the opposite party No.7 is supposed to be the basis of selection, he does not have any experience because the age of the opposite party No.7 was not 21 years or above. On the otherhand, he was below the age stipulated in the advertisement i.e. 21 to 35 for engagement of Jogan Sahayak which was formerly known as Salesman. So, the document produced by the opposite party No.7 should not be relied upon. Law regarding the word “preference” is that all the eligibility criteria being same, a candidate having experience may claim preference but in Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 3 of 11 the present case, the opposite party who has secured less marks in the 10th class examination cannot be placed at serial No.1. 5. Learned Counsel has relied on a decision held in the case of Secretary, A.P.Public Service Commission v. Y.V.V.R.
Legal Reasoning
Srinivasulu and others1 wherein the meaning of word “preference” in the recruitment process has been well defined that: additional qualification would “When selection is made on the additional qualification would mean other things being qualitatively and quantitatively equal, those be having preferred- It does not mean en bloc preference irrespective of inter se merit and suitability- It cannot work as a reservation or complete precedence- Moreover, on facts, the old rules on the basis of which preference claimed had been superseded and replaced by the new rules which deleted the preference provision- even if PSC in its advertisement referred to preference for additional qualification ignoring the new rules, the same cannot be binding on it nor can anyone on that basis claim a right to the detriment of others” 6. Further, in this regard, he relied on another decision held by the Supreme Court in the case of State of U.P. and another v. Om Prakash and others.2 1 2003 SCC OnLine SC 542 22006 SCC OnLine SC 752 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 4 of 11 III. OPPOSITE PARTIES’ SUBMISSIONS: 7. Per contra, learned counsel for the opposite parties submits that there is absolutely no illegality or impropriety in placing the opposite party No.7 in Sl.No.1 during the selection process for the post of Jogana Sahayak in Kamira G.P. and the said selection has been made as per the necessary guidelines issued by the State Government from time to time. It is further submitted that pursuant to letter No.7040 dated 21.04.2012 of the Commissioner–cum-Secretary, Food Supplies & Consumer Welfare Department (in short, “FS & CW Deptt.”) and letter No. 808 dated 31.12.2015 of Collector, Subarnapur procedure for engagement of the Jogan Sahayak in different Gram Panchayat under Birmaharajpur Block was initiated. 8. In Birmaharajpur Block, 10 nos. of G.P. have submitted resolution for engagement of Jogan Sahayak as they are dealing with PDS. After receipt of resolution from the G.Ps, an advertisement was published vide letter No. 420 dated 30.03.2016.Accordingly, B.D.O. Birmaharajpur /opposite party No.4 vide letter No. 522 dated 21.04.2016 directed the three applicants of Kamira G.P. namely, the present petitioner, opposite party No.7 and one Binodini Pradhan to appear with original documents of HSC/Matric certificate, Mark Sheet, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 5 of 11 Residential Certificate, Caste Certificate, Character Certificate and to her related documents for verification. 9. It is further submitted that as per provision contained in the Govt. in FS & CW Deptt. Letter No. 13723 dated 12.08.2013 the working Salesman is to be given preference over others due to his experience dealing with PDS matters. The engagement of Sri Binod Padhan as Salesman of Kamira G.P. under Birmaharajpur was resolved in the G.P. monthly Meeting dated 25.10.2011 vide proposal No.4 and the engagement was legally approved by the District Panchayat Officer, Subaranapur vide order No. 1062 dated 15.12.2011. The Executive Officer of Kamira G.P. have issued experience certificate in favour of the Salesman (Opp.Party No.7). The O.P.No.4 has only adhered to the instruction of Govt. in FS & CW Deptt. In this matter and the matter of giving preference to the salesman engaged by the G.P. dealing with PDS may be given preference over others due to their experience in the job. 10. It is further submitted that apart from selection based on the career marking for 10th class passed or equivalent to matriculation, preference may be given to the salesmen engaged by the GP dealing with PDS due to their experience in the job as clearly mentioned in the advertisement made by the opposite party No.4 vide letter No. 420 dated 30.03.2016. In addition to that it is further submitted that pursuant to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 6 of 11 letter No. 13723 dated 12.08.2013 of the Govt. in FS & CW Department, preference was given to Sri Binod Pradhan/opposite party No.7 over the petitioner as he was working as Salesman and had the experience in the job. It may be true that the opposite party No.7 had secured less percentage of marks in matriculation as compared to the petitioner. However, the opposite party No.7 was placed at
Decision
Sl.No.1 in the list in view of the above letter of Govt. as he was working as Salesman in Kamira G.P. having been legally appointed by the G.P. and duly approved by the District Panchayat Officer, Subarnapur as required under OGP Act and Rules which is legal and maintainable in the eye of law. Further, the criterion of selection is based on minimum qualification along with experience and condonation of the age of the salesmen who are working as Salesmen in the posts ought to be abolished and replaced with the posts of Jogana Sahayak. So, prior employment of the persons faced with abolition of posts cannot be ignored as the Education Qualification is not one and only criteria as per the advertisement and they shall get weightage. So, the reliance of the petitioner on the basis of qualification is not sustainable. IV. COURT’S REASONING AND ANALYSIS: 11. On perusal of the documents available on the record, it is revealed that the opposite party No.7 might have secured less Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 7 of 11 marks in the 10th Examination than the petitioner. However, he had additional experience of four years as Salesman which was one of the criteria of the advertisement. Accordingly, the claim of the petitioner does not merit consideration for the engagement of Jogana Sahayak in question. 12. The present matter demands a discussion on the issue of preferential qualification. It is well settled that in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. The basic object of prescribing a minimum qualification is to put a cut-off level for a particular job in accordance with the minimum competency required for the performance of that job. 13. In the present matter, the matriculation certificate is the minimum qualification and accordingly the person with more “experience” in the job would be given preference. In this regard, this Court has relied on Secy. (Health) Deptt. of Health & F.W. v. Anita Puri (Dr)3: “7. Admittedly, in the advertisement which was from the published calling candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for applications 3(1996) 6 SCC 282 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 8 of 11 to for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding a M.D.S. is entitled to be selected and qualification appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be interview, course ascertained of in Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 9 of 11 extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the that higher qualification advertisement person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.” 14. This Court has also relied on Surinder Singh v. Union of India4: “16. In our view, in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The a minimum of prescribing basic qualification is to put a cut-off level for a particular job in accordance with the minimum competency required for the performance of that job.“ object 4(2007) 11 SCC 599 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 10 of 11 15. In light of the aforesaid discussion, this Court is of the opinion that the contention of the Petitioner being devoid of any merit stands rejected. 16. Accordingly, this Writ Petition stands dismissed. No order as to costs. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 24th August, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 15:30:22 Page 11 of 11