The High Court
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.12636, 14971 and 15010 of 2022 (In the matter of applications under Articles 226 and 227 of the Constitution of India, 1950). In W.P.(C) No.12636 of 2022 Lalatendu Mishra &Ors. …. Petitioners -versus- State of Odisha and Ors. …. Opp. Parties Advocates appeared in the case throughHybrid Mode: For Petitioners : Mr. Jayanta Rath, Sr. Adv. Mr. Durgesh Narayan Rath, Adv. -versus- For Opp. Parties : Mr. Ashok Ku. Parija, AG Mr. Sandeep Parida,Sr. S.C. Mr. Biswajit Mohanty, SC Mr. D.R.Mohapatra, SC (for S & ME Deptt.) Mr. Prafulla Ku. Rath, Adv. (for intervener) In W.P.(C) No.14971 of 2022 Malaya RanjanTripathy and Ors. …. Petitioners -versus- State of Odisha and Ors. …. Opp. Parties Page 1 of 47 Advocates appeared in the case through Hybrid Mode: For Petitioner : Mr. Kirtiranjan Mohanty, Adv. Mr. D.K. Panda, Adv. For Opp. Parties : -versus- Mr. Ashok Ku. Parija, AG Mr. Sandeep Parida,Sr. S.C. Mr. Biswajit Mohanty, SC Mr. D.R.Mohapatra, SC (for S & ME Deptt.) In W.P.(C) No.15010 of 2022 Arindam Mohanty & Ors. …. Petitioners -versus- State of Odisha and Ors. …. Opp. Parties Advocates appeared in the case through Hybrid Mode: For Petitioners : Mr. D.K. Panda, Adv. Mr. A.K.Mishra, Adv. For Opp. Parties : -versus- Mr. Ashok Ku. Parija, AG Mr. Sandeep Parida,Sr. S.C. Mr. Biswajit Mohanty, SC Mr. D.R.Mohapatra, SC (for S & ME Deptt.) Page 2 of 47 CORAM: DR.JUSTICE S.K. PANIGRAHI DATE OF HEARING:-24.06.2022 DATE OF JUDGMENT:-21.07.2022 Dr.S.K. Panigrahi, J. 1. The Petitioners in the abovementioned Writ Petitions have challenged the advertisement dated 23.12.2021 issued by the Directorate of Secondary Education, Odisha on the grounds that the same is illegal and bad in law as it does not conform to theprovisions of the Odisha Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 (hereinafter referred to as “the ORV Act” for brevity) and the law laid down by the Apex Court of India. Moreover, it is also alleged that the said advertisement for recruitment of Initial Appointee Teachers in Government Secondary Schools of Odishaon contractual basis is liable to be set aside as it is arbitrary, for it does not prescribe a minimum pass mark for the Computer Based Test.Further, in one of the Writ Petitions, it has been contended that the State Government has utilized the services of an alleged blacklisted company for conducting the Computer Based Competitive examinationwhich suffers from the vice of mala fide. Since the cause of action of the aforementioned Writ Petitions are broadly similar, these are being taken upanalogously and have been dealt with by this common judgment. Page 3 of 47 I. Facts of the Case: 2. The School and Mass Education Department, Government of Odisha vide Resolution No. 24293 dated 14.12.2021 decided to fill up the vacant posts of secondary school teachers in government schools after collecting information about the vacancies in each district. Pursuant to the same, after receiving the prescribed permissions, the Directorate of Secondary Education, Odisha vide Notice No. 4A-7-II-2021-33683 dated 23.12.2021issued an advertisement (the impugned advertisement) inviting online applications from intending eligible candidates for recruitment against existing vacancies of Initial Appointee Teachers in Government Secondary Schools of Odisha. 3. The vacant posts that were sought to be filled were in TGT Arts, TGT Science (PCM), TGT Science (CBZ), Hindi Teacher, Sanskrit Teacher, Telegu Teacher and Physical Education Teachers. A detailed district-wise vacancies and breakup of the number of vacancies available for different reservation categories was appended to the said advertisement as“Appendix A”and was widely published. Eligibility conditions pertaining to age, educational qualifications for each post depending on the subject and other miscellaneous conditions were laid out in a detailed manner in the impugned advertisement. 4. The method of selection was also comprehensively set out. It was determined that candidates would be selected on the basis of their performance in the Computer Based Test for which a syllabus was also attached in the impugned advertisement. The Page 4 of 47 Selection Committee appointed by the Government to oversee this recruitment process reserved the right to decide the cut-off mark at a later stage and left the option of choosing to normalize the score open. A rank list was to be prepared after either normalizing all scores or in order of the marks secured, as would be decided by the Selection Committee and then candidates would be short-listed from the said rank list. These short-listed candidates would then get their documents verified and it was also explicitly mentioned in the advertisement that the committee shall have the right to decide the criteria for such short-listing. The Selection Committee decided that after document verification, a draft merit list would be prepared and objections would be invited. Pursuant to necessary corrections, the merit list would be finalized and appointments would ensue after district-wise allocation through online counselling or any other mode deemed fit which was to be decided later by the Selection Committee. 5. The impugned advertisement also made it clear that this engagement is purely contractual in nature and the candidate would have to execute a contract agreement in the specific format, indicating the terms of their appointment, with the District Education Officer prior to their engagement. II. Submissions advanced on behalf of the Petitioners 6. The Petitioners in W.P. (C) No. 12636 of 2022 assail the impugned advertisement on the ground that it is illegal for the State Government to reserve its right to decide the cut-off mark Page 5 of 47 of the Computer Based Test for shortlisting as the same leads to an anomalous situation wherein in the absence of a pass mark everyone who appears and passes, becomes eligible to be shortlisted, however, the perspective of the recruiter remains unclear, because the State Government shall arbitrarily determine the pass mark at a later stage. The thrust of the argument made was that in the absence of fixation of a pass mark by the recruitment authority which is allegedly amarked departure from previous advertisements of the State Government.Thus, it allegedly shows the malafide intention of the authorities. The Petitioners also assail the impugned advertisement on the ground that the district-wise vacancies per post which is appended in “Appendix A” of the impugned advertisement is a clear violation of the provisions of the ORV Act and the law laid down by the Supreme Court in Indra Sawhney v. Union of India1 as the reservations for social categories exceed 50% of the vacancies that are advertised for, in excess of the ceiling limit, which renders the advertisement illegal and liable to be quashed. 7. In W.P.(C) No. 14971 of 2022, the Petitioners haveinter alia
Facts
challenged the impugned advertisement on the ground of engagement of an alleged blacklisted company, one MeritTrac Services Private Limited to conduct the Computer Based Test which allegedly has culminated into suspicious scores of some candidates who sat for the test and have scored questionably 1 1992 Supp (3) SCC Page 6 of 47 high marks which is not possible given the previous trends of scores in this examination. It is urged by the Petitioners in this Writ Petition that the examination was not conducted in a fair and transparent manner. Furthermore, a new system of publication of result and calculation of normalized scores was purported to have been used which smack malpractice and therefore, the impugned advertisement, the examination and result are sought to be declared invalid. 8. Finally, in W.P. (C) No. 15010 of 2022, the Petitioners have challenged the impugned advertisement mainly on the ground of its alleged violation of the provisions of the ORV Act and the law laid down by the Hon’ble Supreme Court in Indra Sawhney (supra) as the reservations exceed the ceiling limit of 50% of the vacancies that are advertised for. 9. All the Petitioners had admittedly applied for the vacant posts advertised in the impugned advertisement in the unreserved category. They subsequently appeared in the Computer Based Test and were unsuccessful to be placed in the merit list thereafter. III. Submissions by the Opposite Party:
Legal Reasoning
10. Mr. A. K. Parija, Ld. Advocate General, appearing for the Department of School and Mass Educationcontended that: a. The Petitioners who have participated in the recruitment process i.e., applied online, and appeared in the CBT and failed in the said test. They had complete knowledge about Page 7 of 47 the break up of the reserved and unreserved seats as reflected in the advertisement itself. They could have challenged the same at the beginning. The Petitioners are estopped from challenging the advertisement at this final stage of the selection process. This approach of the petitioner does not find favour with the Apex Court in Dhananjay Malik v. State of Uttaranchal2, Ranjan Kumar v. State of Bihar3, and Anupal Singh v. State of U.P4. b. Reliance was also placed on the judgment of the Supreme Court by the peititioners in Krishna Rai v. Banaras Hindu University5. In paragraph 22 of the said judgment, the Supreme Court has held that "The Division Bench ought to have considered that the appellants were Class-IV employees working from 1977 onwards and expecting from them to have raised serious objection or protest at the stage of interview and understanding the principles of changing the Rules of the game, was too far-fetched, unreasonable and unwarranted". He vehemently submitted that in light of the aforesaid observations, the judgment of the Apex Court in Krishna Rai (supra) is distinguishable and must be considered in light of its peculiar facts and circumstances. However, in the instant case, the Petitioners were at liberty to challenge theadvertisement at the very inception. Instead, the Petitioners have chosen to challenge the advertisement only after publication of the results.
Decision
order dated 29-8-1997, various organisations including the Members of Parliament represented to the Central Government for protecting the interest of the Scheduled Castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make an amendment in the Constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before 29-8-1997". (emphasis supplied) vi. The said Article 16(4B) which was inserted vide the Constitution (Eighty-first Amendment) Act, 2000 reads as under: "(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year Page 13 of 47 which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year." vii. It is well settled that while interpreting the first proviso to Section 7, this Court would be pleased to read the same harmoniously with Article 16(4B). On a harmonious construction, sub-Article (4B) of Article 16 would prevail over the first proviso to Section 7 in the event of any inconsistency between the said two provisions. Hence,no infirmity or illegality can be said to have been committed by the State Government in issuing the said advertisement which is strictly in conformity with provisions of Article 16(4B). viii. The Petitioners’ contention regarding the filling up the backlog vacancies can only be made by way of a special drive for reserved categories is fallacious upon a bare perusal of paragraph 96 of the judgment in the case of M. Nagaraj v. Union of India which may be extracted below: "96.....If it is within the power of the State to make reservation then whether it is Page 14 of 47 in one made selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter." ix. The Petitioners’ heightened contention that there havebeen excess appointments of SEBC candidates and notwithstanding the same, 150 posts of SEBC have now been advertised and therefore, the same is illegal and renders the advertisement bad in law. This submission is also fallacious for the following reasons: a. The excess 400 SEBC appointments is a legacy of the past. While earlier 27% reservation was provided for SEBC, the same has now been restricted to 11.25%. Thesaid issue is also pending before the Apex Court. These 400 posts will be reverted to UR vacancies as and when the posts fall vacant upon superannuation or otherwise of the incumbents. b. The reason for the advertisement of 150 posts now can be explained from the fact that in some districts such as Sl. No. 3 Baragarh, Sl. No. 5 Bolangir, Sl. No. 6 Boudh, Sl. No. 7 Cuttack, et cetera, no Page 15 of 47 vacancies have been advertised there on account of the excess SEBC appointments.On the other hand, in some districts such as Sl. No. 1 Angul, Sl. No. 2 Balasore, Sl. No. 4 Bhadrak, et cetera, SEBC posts have been advertised since there is a deficit in the representation of SEBC in those districts. Prescribing qualifying marks was only one of the modalities and the same was not mandatory. It was left open to the Selection Committee to delineate the procedure to be followed. g. The alleged blacklisting has been quashed by the High Court of Punjab and Haryana. Moreover, the blacklisting of the Agency has been stayed by a Division Bench of the Hon'ble Delhi High Court. Hence the issue of engaging a black listing company is unnecessarily being raised to create prejudice in the litigation atmosphere. In view of the aforesaid submissions, the Writ petition is liable to be dismissed. The prayer of the petitioners are beyond the trap of priest craft. IV. Issues for determination and Court’s Reasoning: 11. In view of the argument advanced by the parties, the Petitioners mostly confined their arguments to assuage the question of maintainability of the writ petition and whether the impugned advertisement breached the ceiling limit of 50% in reservations Page 16 of 47 of posts. However, it is considered apposite in the present lis to determine the following four issues which are germane to the caseathand. These issues are as follows: I. Whether the present Writ Petitions are maintainable in light of the fact that the Petitioners having participated in the selection process and thereafter being unsuccessful, have belatedly sought to quash the impugned advertisement? II. Whether the Computer Based Test being conducted by an alleged black-listed company is unfair and thus the entire examination and subsequent merit list prepared on the basis of the marks achieved by candidates in the examination is liable to be set aside? III. Whether the impugned advertisement is in violation of the provisions of the ORV Act, 1975 and the position of law laid down by the Hon’ble Apex Court in Indra Sawhney’s case? IV. Whether the impugned advertisement which advertises for contractual appointments, is liable to be set aside due to non-conformity with Section 3(d) of the ORV Act, 1975 in as much as the ORV Act, 1975 shall not apply to the impugned advertisement, however, the impugned advertisement in Clause 4 states that the ORV Act, 1975 shall apply to it? Page 17 of 47 Issue No. 1 12. The Ld. Counsel for the Petitioners submits that a candidate is not estopped from challenging the selection process if the selection process has misconstrued statutory rules as the selection process allegedly has done in the matter athand.Ld. Counsels for the Op. Parties have, on the other side, vehemently argued that the present Writ Petitions are not maintainable given that the Writ Petitioners have admittedly participated in the selection process and understood all terms and conditionslaid down in the impugned advertisement. Being fully conscious of its terms, reservation policy, number of vacancies available etc. the Writ Petitioners took a calculated chance and after having been unsuccessful in getting selected or scoring unsatisfactory marks in the Computer Based Test therebydoubting their chances of selection. They have belatedly challenged the impugned advertisement only with an objective of derailing the recruitment process.The action of the present petitioner is likely to push thousands of successful candidates’ future into uncertainties when thousands of schools in the state are afflicted by shortage of teachers. 13. In this regard, it is trite in law that a candidate who has participated in the selection process, upon being unsuccessful, cannot turn around and challenge the advertisement. This position of law has been time and again reiterated by the Page 18 of 47 Hon’ble Supreme Court in Madan Lal v. State of J.K.10, Ranjan Kumar v. State of Bihar11, Anupal Singh v. State of U.P.12, Vijay Seyal v. State of Punjab13 and Dr. G. Sarana v. University of Lucknow14. In Dhananjay Malik v. State of Uttaranchal15, wherein it was held that having participated in the selection process without any demur, the respondent-writ petitioners are estopped from complaining that the selection process was not in accordance with the Rules and that if they thought that the advertisement and selection process were not in accordance with the Rules, they should have challenged the advertisement and selection process, at the threshold itself, without participating in the selection process. 14. As it flows therefrom, needless to say that the persons who participated in the selection process after having accepted the terms and conditions of the selection, cannot challenge the said process subsequently and this issue, therefore, is answered in favour of the Opposite parties. However, given the important questions of law this present lis raises, this Court considers it prudent to examine the same despite the present Writ Petitions being liable to be dismissed on the ground of non- maintainability itself. Issue No. 2