Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P.(C) NO. 23329 OF 2015 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Manoranjan Mohanty ..… Petitioner -Versus- Deputy Registrar, Odisha Administrative Tribunal, Cuttack Bench, Cuttack and others ….. Opp. Parties For petitioner : M/s R.K. Patnaik, B. Mohapatra and A.K. Parida, Advocates For opp. parties : Mr. R.N. Mishra, Addl. Govt. Advocate P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing and Judgment : 30.01.2024 DR. B.R. SARANGI, ACJ. The petitioner, by means of this writ petition, seeks to quash the order dated 11.11.2014 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 4176 (C) of 2012, and to issue direction to opposite party no.5 to // 2 // issue appointment order in his favour as Forester under SEBC category in Bonai Forest Division in pursuance of the advertisement under Annexure-1. 2. The facts leading to filing this writ petition, in a nutshell, are that an advertisement was issued in the year 2010 in local daily newspaper by opposite party no.4 for filling up of five posts of Forester under his Division. Pursuant to such advertisement, the petitioner, having satisfied the requirement of eligibility criteria, applied for the post of Forester under SEBC category. The application of the petitioner, having been found in order, he was called upon to appear in the examination. As he was qualified both in written and physical tests, the selection committee called him to appear in the viva-voce test. Consequentially, he faced viva-voce test, but he could not be selected and, as such, only four candidates were selected by the selection committee on 28.04.2010. The petitioner made a query to find out the reason for his non-selection, but nothing was provided to him. // 3 // 2.1. Thereafter, one Tushar Brahma sought information under the Right to Information Act, 2005 to know the marks secured by the candidates in the said test. In response thereto, opposite party no.5, on 05.02.2011, supplied the final compilation sheet for the recruitment to the post of Forester in Bonai Forest Division. On perusing the same, the petitioner came to know that he has secured 59 marks, whereas one Bibekananda Panda, who was selected under unreserved category, secured 55 marks. One Sukanta Kumar Brahma, who had secured 60.5 marks but was not selected, as he had applied under SEBC category, filed O.A. No. 779 of 2011 challenging the appointment of Bibekananda Panda, who had secured less mark than Sukanta Kumar Brahma. In the said Original Application, the petitioner filed an application for intervention, which was allowed and the petitioner was impleaded as opposite party no.6 in the said Original Application. The Tribunal, vide order dated 19.07.2012, allowed the said Original Application and quashed the appointment of Bibekananda Panda, who was opposite party no.5 in the Original Application and also directed // 4 // opposite parties no.2 to 4 to appoint Sukanta Kumar Brahma in the post of Forester against which said Bibekananda Panda was appointed. Though the petitioner, being an intervenor, was arrayed as opposite party no.6 in the Original Application, the Tribunal, while disposing of the said Original Application, did not take into consideration his plea. Thereafter, in compliance of the order dated 19.07.2012 of the Tribunal, opposite party no.5, on 20.10.2012, issued appointment in favour of Sukanta Kumar Brahma. 2.2. One candidate, namely, Gagan Bihari Senapati, who was selected as Forester under SEBC category, did not join and did not go for training due to his health condition and he submitted his unwillingness to the opposite parties. Therefore, the petitioner filed a separate Original Application, bearing O.A. No. 4176 of 2012 before the Tribunal seeking direction to the opposite parties to appoint him as a Forester under Bonai Forest Division in the post meant for SEBC category pursuant to the advertisement under Annexure-1, as one Gagan Bihari Senapati was selected // 5 // under SEBC category and did not join because of his health condition, thereby, the petitioner, having secured 59 marks and was next to him, is entitled to get such post. Pursuant to notice, opposite party no.5 filed counter affidavit stating inter alia that as the selection procedure does not envisage existence of a waiting list, in the event of vacancy arising out of non-joining of a candidate in the select list, the vacancy will continue as such. The opposite party no.5 specifically contended that the validity of the merit list for one year has already been expired and, therefore, the claim of the petitioner to be appointed as Forester under the SEBC category has no merit, as his name was not in the merit list. The Tribunal, considering the pleadings available on record and the arguments advanced by the respective parties, vide order dated 11.11.2014, held that the name of the petitioner was not in the select list and no waiting list of candidates was prepared as per the existing procedure of selection clarified by the opposite party no.4 to opposite party no.5, and by holding so, dismissed the Original Application filed by
Facts
the petitioner. Aggrieved by the order dated 11.11.2014, // 6 // the present writ petition has been filed claiming the benefit of appointment as Forester under the SEBC category pursuant to the advertisement under Annexure-1. 3.
Legal Reasoning
There is no dispute with regard to the factual matrix, as delineated above. Therefore, the only question that arises to be considered by this Court is, whether the petitioner is entitled to get the relief of appointment as Forester in Bonai Forest Division, pursuant to the advertisement issued under Annexure- 1, even though his name does not find place in the select list or waiting list prepared by the authority. In the service jurisprudence, independent meanings are attached to the words “select list” and “waiting list”. 7. In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra (1990) 2 SCC 669, while considering the question of the meaning of selection, the apex court held as follows:- “If the word ‘selection’ is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with issuance of advertisement and ends with the preparation of select list for appointment. Indeed, inviting applications scrutiny of applications, rejections of ineligible defective applications or elimination of candidates for interview or viva-voce and preparation list of successful candidates for appointment.” it consists of various steps examinations, conducting calling like // 10 // In view of such position, the process of selection began with issuance of advertisement and ended with the preparation of select list for appointment and following that the select list was prepared where the name of the petitioner did not find place. 8. In State of U.P. v. Rafiquddin, AIR 1998 SC 162, the apex Court held that a select list prepared by the Public Service Commission on the basis of results of the competitive examination of a particular year should not normally be used after the results of a subsequent examination are declared. 9. In State of U.P. v. Nidhi Khanna, AIR 2007 SC 2074, the apex Court held that once a fresh select list is prepared pursuant to a subsequent advertisement, a person empanelled in the earlier select list issued under an earlier advertisement is not entitled to be appointed. 10. In Gujurat State Deputy Executive Engineers Association v. State of Gujarat, (1994) Supp.2 SCC 591, the apex court held that such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other read on // 11 // or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. Referring to Gujarat State Dy. Executive Engineers’ Association (supra), the apex Court in Surinder Singh and others v. State of Punjab and others, AIR 1998 SC 18, held that a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. 11. In Gujurat State Deputy Executive Engineers Association (supra), it has been further held that the waiting list is operative only for the contingency that if any of the selected candidate does not join, then the person from the waiting list may be pushed up and appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. // 12 // But, in the present case, even the waiting list was not prepared by the authority and also the name of petitioner does not find place in the select list. 12. In view of the meaning attached to the words “waiting list” and “select list”, as mentioned above, the name of the candidate, who claims such benefit, must appear either of the lists. Admittedly, the name of the petitioner neither finds place in the “select list” nor in the “waiting list”. Consequentially, even though vacancy has been made available under the SEBC category due to non-joining of Gagan Bihar Senapati, that ipso facto cannot be filled up by the petitioner. It is no doubt true that the petitioner has received information under the Right to Information Act, 2005 that he has secured 59 marks in the examination, but that ipso facto cannot entitle the petitioner to get the benefit of appointment as Forester, because his name does not find place either in the “waiting list” or in the “select list”. 13. An alternative argument was advanced before this Court that the petitioner was arrayed as opposite party no.6 in the Original Application, i.e., O.A. No. 779 // 13 // of 2011 filed by Sukanta Kumar Brahma and since the said Original Application has been allowed and Sukanta Kumar Brahma has got the benefit of employment, the petitioner, who was arrayed as intervenor opposite party no.6 therein, should have been granted the similar benefit of employment by the Tribunal. But fact remains, the petitioner, being an intervenor opposite party no.6, no relief can be granted to him. 14. In Craig R. Ducat-Constitutional Interpretation, the word “intervenor” has been defined to mean as an affected party, who, with the Court’s permission, participates in a lawsuit after its inception by either joining with the plaintiff or uniting with the defendants. 15. Similarly, Section 47 of the Code of Civil Procedure provides that an ‘intervenor’ who is impleaded as a party will of course, be a party to the suit within the meaning of Section 47. But no relief can be granted to such intervenor, who was only given opportunity of hearing in the matter. // 14 // 16. Furthermore, in O.A. No. 779 of 2011 filed by Sukanta Kumar Brahma, the petitioner had intervened as opposite party no.6 and had not approached the Tribunal seeking any relief. Therefore, even though he stands on the same footing as the petitioner in O.A. No. 779 of 2011, he cannot be granted such relief by the Tribunal. Therefore, this Court does not find any error apparent on the face of the record in the said order passed by the Tribunal in not extending the benefit to an intervener opposite party in the Original Application. Apart from the same, the Tribunal vide the impugned judgment has come to a definite finding that since no waiting list has been prepared after the test, even though SEBC candidate Gagan Bihari Senapati, who was selected, did not join in the training. The claim of selection of the present petitioner against such vacancy due to non-joining of Gagan Bihari Senapati cannot have any justification. As such, the petitioner was also not a party to the select list and more so no waiting list of the candidates was prepared by the authority, as per the existing procedure of selection, as clarified by the Regional Conservator of Forests, Rourkela Circle. As // 15 // such, the vacancy occurred due to non-joining of a SEBC candidate cannot be filled up by appointment of the petitioner and the vacancy has to continue till further selection is made and, by holding so, the Tribunal dismissed the Original Application. 17. In the above view of the matter, this Court does not find any illegality or irregularity in the impugned judgment/order passed by the Tribunal so as to warrant interference with the same. 18. In the result, the writ petition merits no consideration and the same is hereby dismissed. However, under the facts and circumstances of the case,
Arguments
Mr. R.K. Pattnaik, learned counsel appearing for the petitioner vehemently contended that the petitioner was opposite party no.6 in O.A. No. 779 of 2011 filed by Sukanta Kumar Brahma and, as such, he was impleaded as such by way of intervention. Therefore, having stood in the same footing as that of Sukanta Kumar Brahma, the benefit which has been extended to him should have been extended to the petitioner by giving appointment against the vacancy available. It is further contended that even though no relief was granted in the Original Application filed by Sukanta Kumar Brahma, i.e., O.A. No. 779 of 2011, when the petitioner filed separate O.A. No. 4176 of 2012, the Tribunal could have granted such benefit. But the Tribunal rejected his claim, as the name of the petitioner was neither in the select list nor in the waiting list of candidates and, as such, denied the // 7 // benefit to the petitioner. Thereby, the Tribunal has acted arbitrarily and unreasonably by denying the benefit of appointment to the petitioner against the vacancy in the SEBC category and, as such, he has secured highest marks in that category. 4. Mr. R.N. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties contended that the relief claimed by the petitioner is not admissible as his name does not find place in the select list prepared by the authority nor any waiting list was prepared as per the existing procedure of selection made by the selection committee. In absence of the name of the petitioner either in the select list or in the waiting list, his claim for appointment is not admissible. It is further contended that the contention raised, that the petitioner, having intervened as opposite party no.6 in O.A. No.779 of 2011, if any benefit has been extended to the applicant in the said Original Application, namely, Sukanta Kumar Brahma, similar benefit should have been extended to him, has no justification, because the petitioner had not filed any // 8 // application seeking such appointment. Therefore, in the application filed by Sukanta Kumar Brahma, no relief could be granted in favour of the petitioner. As such, the claim made by the petitioner cannot be sustained. Apart from the same, in the separate Original Application filed by the petitioner, i.e., O.A. No. 4176 of 2012, the relief also not admissible to the petitioner, as his name does not find place in the select list nor in the waiting list prepared by the authority. Consequentially, the writ petition filed by the petitioner cannot be sustained and is liable to be dismissed by confirming the order passed by the Tribunal. 5. This Court heard Mr. R.K. Pattnaik, learned counsel appearing for the petitioner and Mr. R.N. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission. // 9 // 6.
Decision
there shall be no order as to costs. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Feb-2024 14:03:13 Orissa High Court, Cuttack The 30th January, 2024, Ashok