The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA No.1168 of 2024 (Appeal arising out of W.P.(C) No.35486 of 2023) National Institute of Technology, Rourkela …. Appellant -Versus- Avijit Patnaik and another …. Respondents Advocates appeared in this case: For Appellant : Mr. N.K. Sahu, Advocate Mr. S.S. Sahu, Advocate For Respondents: Mr. P.K. Rath, Sr. Advocate Mr. A. Behera, Advocate CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T 15.07.2025 PER MRUGANKA SEKHAR SAHOO, J. This intra Court appeal by the National Institute of Technology, Rourkela (for brevity hereinafter referred to as „appellant‟/„NIT‟) calls in question the judgment and order passed by the learned Single Judge dated 19.04.2024 in Page 1 of 17 W.P.(C) No.35486 of 2023. The operative portion of the order impugned is quoted herein: “6.5. Since the selected candidate Sri Abinash Biswal was terminated from his services on 27.06.2022, taking into account the direction issued by this Court in W.P.(C) No.5571 of 2016 and subsequent direction issued in W.P.(C) No.17493 of 2023 and the panel available at Annexure-A/3 to the counter, this Court is of the considered view that no fresh interview can be conducted in terms of the impugned notification issued by Opp. Party Nos.2 & 3 on 27.10.2023 under Annexure-1. The decisions relied on by the learned counsel appearing for Opp. Party Nos. 2 & 3 are no way applicable to the facts of the present case in view of the nature of order passed in W.P.(C) No.5541 of 2016 and W.P.(C) No.17493 of 2023. 6.6. Therefore, this Court is inclined to quash the impugned communication dated 27.10.2023 so issued by Opp. Party No.3 under Annexure-1. While quashing the same, this Court directs Opp. Party Nos.2 & 3 to provide appointment to the Petitioner basing on his position in the panel so available at Annexure-A/3 to the counter within a period of two (2) weeks from the date of receipt of this order.” 2. Evidently, the writ petition out of which this writ appeal arises was preceded by two writ petitions arising out of and touching the self same issues regarding selection and appointment of Technical Assistant (Video Editing) in NIT. Out of the said two writ petitions W.P.(C) No.5571 of 2016 was disposed of by learned Single Judge by order dated 18.04.2023 and W.P.(C) No.17493 of 2023 was disposed of by order dated 06.10.2023. The operative portions of the said orders are reproduced herein: WA No.1168 of 2024 Page 2 of 17 Operative portion of order dated 18.04.2023 passed in W.P.(C) No.5571 of 2016. “…8. In the instant case, the recommendation of the selection committee was made on 01.04.2015 (copy enclosed as Annexure-F/2 to the counter filed by NIT). As already stated, the present writ petition was filed on 28.03.2016, i.e., before expiry of the period of one year from the date of recommendation. There is however, no panel as such. Nevertheless, it is not disputed that the opposite party no.8 was terminated from service on the ground of playing fraud for which his appointment has to be treated as invalid from the very beginning. Under such circumstances, the two other candidates, who were called to the interview, can raise a claim for being considered in the vacancy so created. Be it noted that merely because the petitioner was called to attend the interview does not confer on him any vested right of being appointed. Nevertheless in view of the peculiar facts and circumstances obtaining in the case vis-(cid:224)-vis the selection and termination of services of opposite party no.8, the case of the petitioner can at least be considered against the vacancy. This is being said because the earlier selection process cannot be said to have been validly concluded in view of the termination of the opposite party no.8 on ground of fraud and misrepresentation of facts etc. 9. For the foregoing reasons therefore, the writ application is disposed of directing the opposite party nos.2 and 3 to consider the case of the petitioner for selection against the vacancy created by the termination of service of opposite party no.8. A decision in this regard shall be taken within a period of four weeks from the date of communication of this order or on production of certified copy thereof by the petitioner.” WA No.1168 of 2024 Page 3 of 17 Operative portion of order dated 06.10.2023 passed in W.P.(C) No.17493 of 2023
Decision
“… 6.Having heard learned counsels appearing for the parties and in view of the undertaking given by the opposite party nos.2 and 3 in the counter in para-5, this Court while disposing the writ petition directs opposite party nos.2 and 3 to conclude the selection process for the post of Technical Assistant with specialization in Video Editing, pursuant to the advertisement issued under Annexure-2 by confining the selection in between the present petitioner and Rashmiranjan Sahoo. This Court accordingly directs opposite party nos.2 and 3 to conclude the selection process within a period of four (4) weeks from the date of receipt of this order.” [Underlined to supply emphasis] 3. By order dated 18.04.2023, the writ petition filed by the respondent-petitioner was partly allowed by the order as indicated above. Thereafter, the present appellant, NIT issued letter dated 19.05.2023, purportedly asking the respondent-petitioner to choose any of the posts he is interested and also observing that he can make an application for the said post within a period of 7 days. The letter dated 19.05.2023 issued by the Registrar, NIT was challenged in the writ petition, W.P.(C) No.17493 of 2023 that was disposed of by order dated 06.10.2023 as indicated above. It would be apt to indicate here that none of the parties to any of the litigations as indicated above have challenged the orders passed earlier in the writ petitions. The appellant-NIT issued communication dated 27.10.2023 asking the respondent and one Sri Rashmiranjan Sahoo to attend „Personal Interview for the post of Technical Assistant (Video Editing)‟ on 02.11.2023. WA No.1168 of 2024 Page 4 of 17 4. Before we advert to the further deliberations for adjudication of the present appeal, a brief narration of the facts those had led to removal/termination of services of one Sri Abinash Biswal, who was selected pursuant to the Advertisement No.ES/03/2014, that included the respondent and Shri Rashmiranjan Sahoo as other participating applicants/candidates. After a selection process that was undertaken pursuant to the said advertisement Sri Biswal was offered job of Technical Assistant (Video Editing) by the NIT, vide office letter dated 06.04.2015. Concededly, pursuant to the Advertisement No.ES/03/2014 the prescribed selection process was undertaken by the NIT that included: Stage-I Multiple Choice Questions of 50 marks, duration of examination of 1hour; Stage-II Descriptive and/or Practical, 50 marks, duration of examination 3 hours. Merit list was prepared on marks scored in Stage-I & Stage-II Tests [50%]+ Career Evaluation [20%]+ Personal Interview [30%]. Purportedly candidates who qualified Stage-I & Stage-II together were considered for personal interview. The final evaluation sheet after evaluation by the Committee formed for the purpose was drawn on 26.03.2015. 5. Since learned counsel for the NIT derive much impetus from the evaluation sheet, the evaluation sheet as available, filed before this Court is scanned and reproduced: WA No.1168 of 2024 Page 5 of 17 WA No.1168 of 2024 Page 6 of 17 6. The series of litigations started when Shri Biswal was „recommended‟ by the Selection Committee as indicated above and offered appointment by the NIT on 06.04.2015. On 28.03.2016 W.P.(C) No.5571 of 2016 was filed by the respondent-petitioner challenging the selection of Shri Biswal to the post of Technical Assistant (Video Editing) making clear allegations that Sri Biswal benefited from nepotism he being related to certain authorities of NIT, he had submitted forged documents as credential for consideration at the time of selection. Case of the appellant NIT is that during pendency of the writ petition W.P.(C) No.5571 of 2016, an idea dawned on them to conduct an enquiry regarding candidature of Shri Biswal that ended in report dated 27.06.2022 holding that Shri Biswal in fact had submitted forged certificates, he did not satisfy eligibility criteria and they terminated his services. 7. It is contended by both the learned counsel appearing for the NIT that post disclosure of the enquiry report dated 27.06.2022, order dated 18.04.2023 was passed by the learned Single Judge partly allowing the writ petition as quoted above. However, as the events unfolded thereafter, the NIT issued letter dated 19.05.2023 addressed to the respondent which contained the following: WA No.1168 of 2024 Page 7 of 17 “To Avijit Pattnaik S/o Mr. Akshaya Kumr Pattnaik At-Panikshya Bhawan, Gadasahi, PO- Athagarh, Distt.- Cuttack, Odisha. Sub: Judgement of Hon‟ble High Court of Orissa in WP(C) No.5571/2016 – regarding. Dear Mr. Pattnaik, This is regarding the direction issued by the Hon‟ble High Court of Orissa in the matter of Sri Avijit Pattnaik vs. Union of India and others. In this regard, it is to inform you that the vacancy of Technical Assistant occurred due to the termination of Mr. Abinash Biswal, along with other vacancies of different posts of the Non-teaching cadre were Institute vide advertisement advertised by the no.NITR/ES/08/2022 dated 13/12/2022. A copy of the advertisement for reference. The applications were invited against the said advertisement through online mode only, and the last date to submit the online application was 16th June, 2023. is enclosed herewith the eligibility criteria given Given the direction of the Hon‟ble High Court and the based on advertisement for different post, you are requested to suggest the post you are interested in applying for within 7 days of the receipt of this letter so that the gateway for online submission of the application can be explicitly activated for you. Further, you are also requested to share the email ID to which the link for the online application can be sent.” in [Underlined by us] WA No.1168 of 2024 Page 8 of 17 From the above letter of NIT, it is apparent that though the authority referred the judgment of the Orissa High Court (Dt.18.04.2023) in W.P.(C) No.5571 of 2016, but they did not refer to the Advertisement No.ES/03/2014 that was the subject matter of the said writ petition. They referred to another advertisement dated 13.12.2022 numbered as NITR/ES/08/2022 asking the respondent to apply again by online application by 16.01.2023. 8. Aggrieved by the said letter dated 19.05.2023 the respondent filed another writ petition W.P.(C) No.17493 of 2023 that was disposed of by order dated 06.10.2023 as indicated above. 9. The thrust of the argument of both the learned counsel appearing for the NIT-appellant is that final evaluation sheet dated 26.03.2015 pursuant to the Advertisement No.ES/03/2014 for post-Technical Assistant (Video Editing) is „is a panel of selection that expired after the period prescribed.‟ The respondent was „not recommended‟ by the Selection Committee. Inclusion of his name in the final evaluation sheet does not confer any right on him to get selected. 10. Learned Senior Counsel Mr. Rath appearing for the respondent submits that the whole process that has led to so many litigations is with objective of depriving the respondent of the fruits of a selection process in which he has been successful. At no stage of selection, he has been WA No.1168 of 2024 Page 9 of 17 declared unsuccessful nor disqualified. Non- recommendation of the respondent and selection of the recommended candidate Sri Biswal was challenged by the respondent in writ petition. Even accepting the fact that the idea of conducting enquiry dawned with the authorities themselves, they found that Shri Biswal‟s selection was vitiated as he practised fraud and they terminated Shri Biswal‟s appointment. 11. Learned counsel for the appellant rely on the judgments: State of Punjab v. Raghbir Chand Sharma and another1, particularly paragraph-4 and Rakhi Ray and others v. High Court of Delhi and others2, in support of their contention that inclusion in a panel of selected candidates does not ipso facto confer any right on a particular candidate to get selected and that such candidate cannot assert any right derived from the panel/select list. 12. After we have heard Mr. S.S. Sahu and Mr. N.K. Sahu at length for appellant, Shri P.K. Rath, learned Senior Advocate for the respondent we hold that the writ appeal has to be dismissed for reasons as elaborated herein below: (i). The appellant-NIT consistently took a stand in all the proceedings in the earlier Writ Applications and they did not question the selection process or the Advertisement No.ES/03/2014. They only refer the “final evaluation sheet”