The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14640 of 2022 An application under Articles 226 and 227 of the Constitution of India. Subhashree Sundar Ray . Petitioner Mr. R.C. Pradhan, Advocate State of Odisha & others -versus- . Opp. Parties Mr. B.P. Tripathy, AGA Mr. D. Mohapatra, Advocate (For Intervener) Mr. P. Mohanty, Advocate (For O.P. No.2 & 3) CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 16.11.2022 | Date of Judgment: 28.06.2023 ______________________________________________________ A.K. Mohapatra, J. : 1. In the present writ application, the petitioner seeks for issuance of a rule NISI calling upon the Opposite Parties to show cause as to why the impugned office order dated 10.05.2022 under Annexure-3 shall not be quashed and further for issuance of a writ of mandamus directing the Opposite Party No.2 to allow the petitioner to attend the selection process before finalizing the selection process for appointment of the selected candidates to the post of Assistant Manager (Admn./MSME). // 2 // 2. Bereft of all necessary details, the factual background case leading to filing the present writ application, in gist, is that the Opposite Party No.2 floated an advertisement for recruitment to the post of Assistant Manager (Admn./MSME) on regular basis. In total 14 numbers of posts were advertised to be filled up. Out of which 3 posts for ST category including 1 for women, 2 posts for SC category including 1 for women, 2 posts for SEBC category including 1 for women and 7 posts for UR category including 2 for women. The Petitioner, who belongs to the SEBC women category, submitted her candidature for the advertised post through online mode on 29.10.2021. On 05.01.2022, the Opposite Party No.2 after due scrutiny of the application forms conducted a written test & interview of all the candidates including the petitioner. The petitioner was successful in the written test & interview conducted by the Opposite Party No.2 and accordingly she was asked to be present on 24.02.2022 for verification of certificate/ documents on 27.04.2022 at 11A.M. and accordingly the petitioner attended the verification of certificate process as directed by Opposite Party No.2 3. While this was the ground scenario, the petitioner received a letter dated 10.05.2022. Whereunder she was intimated that her candidature has been forfeited on the ground that she is not a simple graduate rather she is having professional degree. It is alleged that the impugned order forfeiting the candidature of the petitioner is illegal, arbitrary and in complete violation of the principle of natural justice. It has also been stated in the writ application that the impugned conduct of the Opposite Parties are contrary to the principles laid down by the Hon’ble Supreme Court as well as this Court. Being aggrieved by the // 3 // forfeiture of her candidature the petitioner has approached this Court by filing the present writ application. 4. Heard, learned counsel for the petitioner as well as
Legal Reasoning
recruitment test is concerned, there is no dispute with regard to the facts and the position almost stands admitted by both side. Moreover, on perusal of the pleadings it appears that the dispute is only with regard to eligibility of the petitioner taking into consideration the educational qualification petitioner possesses vis- à-vis the condition in clause-6 of the advertisement under Annexure-1. 19. Having heard learned counsel for the respective parties, upon a careful examination of the pleadings submitted by the respective parties as well as the documents annexed thereto, this Court is of the view that the only question that requires determination/ adjudication in the present writ application is with regard to eligibility of the petitioner keeping in view her educational qualification as well as the condition as stipulated in clause-6 of the advertisement? In the event, this Court comes to a conclusion that the qualification possessed by the petitioner is in tune with the requirement under Clause-6 of the advertisement, then the petitioner is most likely to succeed in the writ application. On the contrary, if it is found that the educational qualification as acquired by the petitioner does not fall within the Clause-6 of the advertisement, the writ application is liable to be dismissed by holding that the forfeiture of the candidature of the petitioner is justified. Accordingly, this Court would now proceed to examine the aforesaid aspect. 20. To adjudicate the issue involved in the present writ application this Court would like to refer to clause-6 of the // 11 // advertisement under Annexure-1 which is also Annexure-A to the counter affidavit. Clause-6 of the advertisement is quoted hereinbelow:- 6. Educational Qualification:- The candidate must have possessed a Degree i) in Arts/Science or Commerce with MBA certificate from recognized and affiliated College/Institution/University. The candidate must have passed the examination on the closing date of the online application form. ii) The applicant must have Odia as one of the subject in the HSC or passed examination in Odia equivalent to M.E. standard or passed in Odia as language subject in final examination of Class- VII or passed a test in Odia in M.E. School Standard or above conducted by Education Department, Govt. of Odisha on the date of the application. iii) As per provisions, the candidates, who have completed Degree Courses through Distance mode shall not be eligible for the post. 21. Similarly, on a perusal of the Regulations, 2019 which has been duly approved Board of Director of EdCIL as well as by the Govt. of Odisha, on 02.08.2019, is the rule which is required to be followed for recruitment to the post once the same was notified by the IDCO. On perusal of Regulations, 2019 annexed to the counter affidavit as Annexure-C/2, it is seen that Clause-12 of the Regulation provides for eligibility criteria for selection and the same is quoted hereinbelow:- 12. Eligibility Criteria for Selection: The Selection Committee shall see that the candidates 1) selected satisfy the stipulation mentioned below: He /She must have possessed prescribed general and a) technical qualification and experience. The period of experience shall be calculated with reference to the date specified in the notification/ advertisement inviting applications for recruitment. // 12 // He/ She must satisfy the criteria of minimum age and upper b) age limit as laid down under regulation 6. c) The upper age limit prescribed under clause (b) above shall be calculated with reference to the date on which the vacancy is notified. d) The date of birth as recorded in the School Leaving Certificate or the Matriculation Certificate shall be accepted for the purpose of proof of age. e) He/ She should be of good character. He/ She must be of sound health, good physique and free f) from organic defects or bodily infirmity. A candidate if married must not have more than one spouse g) living: Provided that the Government may, if satisfied that such marriage is permissible under the personal law applicable to such person or there are other grounds for doing so, exempt any person from the operation of this rule. 22. Further, the aforesaid Regulation, 2019 also provides for disqualification under Clause-15. The said Clause-15 that no person shall be appointed to any post by direct recruitment unless he/ she is medically fit for discharging duties. Besides that there can be no disqualification on the ground that a candidate is having any professional degree and as such he/ she is debarred to be considered for appointment to the post in question. Further, perusal of the regulation reveals that for the post of Assistant Manager (Admn./MSME), the method of recruitment for appointment is 50 per cent to be filled up through promotion and the rest of 50 per cent through direct recruitment. So far the appointment through direct recruitment is concerned, the “minimum qualification” for direct recruitment the eligibility criteria for promotion at Serial No.7 of Column 5 and the same provides degree in Arts/ Science or // 13 // Commerce with MBA. The aforesaid fact is very clear from the document filed along with the counter affidavit. 23. Reverting back to clause 6 in the advertisement, this Court observes that it provides that the candidate must have possessed a degree in Arts/ Science or Commerce with MBA certificate from recognized and affiliated College/ Institution/ University. Further, the educational qualification under clause-6 in sub-clause (III) specifically provides for a disqualification in respect of degrees/ courses through distance mode. However, the same does not provide for any disqualification in case of professional degree. On a comparison of the criteria with regard to educational qualification provided under Clause-6 of the advertisement with that of the clause-12 of the regulation and the table appended to the regulation providing for the educational qualification, this Court observes that clause-12 (1)(a) stipulates that the candidate must have possessed prescribed general and technical qualification and experience. Therefore, this Court is of the considered view that the regulation does not debar the professional degree holders, rather the same prescribes that the professional degree in the shape of technical qualification and experience. Moreover, the table appended to the Regulations, 2019 and filed along with counter affidavit at page 42 of the counter affidavit clearly reveals that the “minimum qualification” for direct recruitment/ eligibility criteria for promotion to the post of Assistant Manager(Admn./MSME) is degree in Arts/ Science or Commerce with MBA. Therefore, the condition stipulated in Regulations, 2019 with regard to educational qualification leaves no rule for doubt that the minimum qualification for direct recruitment to the post of Assistant Manager(Admn./ MSME) is degree in Arts/ Science or Commerce with MBA. // 14 // 24. On a further scrutiny of the materials placed before this Court, this Court found that the Regulations, 2019 which have been approved by the Government of Odisha provides “minimum qualification” for direct recruitment. Whereas the Opposite Parties in the impugned advertisement under clause 6 have not stated the aforesaid facts. Therefore, it appears that there is a conflict between the regulation 2019 and the advertisement issued under Annexure-1 with regard to the educational qualification. In such a scenario this Court has absolutely no hesitation in coming to a conclusion that with the condition stipulated in Regulations, 2019 shall prevail and accordingly, the qualification prescribed in clause 6 is to be treated as minimum qualification for direct recruitment to the post of Asst. Manager (Admn./MSME). This Court is also of the considered view that in the absence of any kind of bar in the Regulations, 2019 as well as in the advertisement under Annexure-1 with regard to professional qualification, the Opposite Parties have acted illegally, arbitrarily and in excess of the authority and jurisdiction by rejecting the candidature of the petitioner on the ground the degree possessed by the petitioner is professional degree and as such she is ineligibile to apply for the advertised post and accordingly her candidature has been illegally forfeited by passing an arbitrary order under Annexure-3 to the writ application. 25. Otherwise also the degree possessed by the petitioner is a bachelor degree in Science Stream issued by the OUAT. Although the petitioner has acquired the bachelor degree in Science in the stream of Forestry and the same is to be considered as a bachelor degree in Science stream. In such view of the matter, this Court is of the considered view that by no stretch of imagination it can be said that the degree possessed by the petitioner does not fall within the educational qualification prescribed in clause-6 of the // 15 // advertisement. Moreover, where the degree acquired by the petitioner is to be treated as a professional degree or not is up to the university/ institution however there is no denying the fact that the degree acquired by the petitioner is a degree in bachelor in Science (B.Sc.). As such the Opposite parties should not have forfeited the candidature of the petitioner on that ground. 26. In addition to the above finding of this Court, this Court is of the considered view that having higher degrees or better qualification per se would not debar the petitioner to apply for the post unless and until the same is specifically prohibited by the rules/ regulation. Moreover, this Court is also persuaded by the principles laid down by this Court in Bhuban Behera’s case (supra) and by in Puneet Sharma’s case (supra) by the Hon’ble Apex Court. This Court is of the further opinion that since the regulation as well as the advertisement does not contain any bar and moreover the regulation specifically provides for minimum educational qualification for the advertised posts. Thereby giving opportunity to persons having higher qualification to apply for the post, and elaborate analysis of the aforesaid judgment relied upon by learned counsel for the petitioner, is not necessary in the facts and circumstances of the present case. 27. In view of the aforesaid analysis of facts as well as legal position, this court is of the considered view that the Opposite Party No.2 has committed a gross legality by forfeiting the candidature of the petitioner vide letter dated 10.05.2022 under Annexure-3. Accordingly, the decision vide office order No.12473 dated 10.05.2022 under Annexure-3 to the writ application so far it relates to the present petitioner is hereby quashed. Accordingly, the Opposite Parties are directed to consider the case of the petitioner // 16 // further for recruitment to the post of Asst. Manager (Admn./MSME). Since at the time of admission by virtue of an interim order a post has already been kept vacant in the SEBC (w) category, this Court further directs that the case of the petitioner be considered along with any other eligible candidate in respect of SEBC (w) category and in the event, it is found that the petitioner is otherwise eligible then her case be considered for appointment to the post of Asst. Manager(Admn./MSME) by the Opposite Parties within a period of two months from the date of communication of the certified copy of this judgment. Further it is made clear that in the event, the Opposite Parties come to a conclusion that the petitioner is eligible for appointment to the aforesaid post, while giving appointment to the petitioner the authorities shall ensure that due seniority be given to the petitioner keeping in view the date of appointment of similar candidates under the very same advertisement as per Annexure-1. 28. Accordingly, the writ petition stands allowed. There shall be no order as to cost. Orissa High Court, Cuttack The 28th of June, 2023/ Anil. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 28-Jun-2023 16:14:54
Arguments
learned counsels appearing for the Opposite Party Nos.2 & 3 and learned Addl. Government Advocate as well as learned counsel appearing for the Intervener-Petitioner. Perused the respective pleadings of the parties as well as the documents annexed thereto. 5. Learned counsel for the petitioner, at the outset, submitted that the petitioner has passed Bachelor of Science (Forestry) from Odisha University of Agriculture and Technology (OUAT) on 21.12.2019. After completion of the aforesaid course, the petitioner took admission in MBA degree course under BPUT in the year 2020-21. It was further contended that the petitioner has successfully completed the MBA degree from BPUT. Learned counsel for the petitioner further contended that apart from having the required educational qualification for the post, the petitioner also belongs to SEBC women category for which a post has been reserved under the advertisement. Copies of the degree certificate as well as caste certificate issued by the Govt. of Odisha have also been filed along with the writ application. 6. Learned counsel for the petitioner further contended that the petitioner satisfies all the eligibility criteria which has been stipulated in the advertisement under Annexure-1 that was floated by the Opposite Party No.2 for the posts mentioned therein. He further contended that the online application submitted by the petitioner was initially accepted by the Opposite Party No.2 and // 4 // accordingly the petitioner was allowed to appear in the written test & interview. Therefore, such acceptance of the application form of the petitioner pre-suppose that the petitioner is not only eligible, but her application was complete in all respect and nothing was lacking. It was also contended that on being satisfied with the fact that the petitioner is fulfilling all the eligibility criteria laid down in the advertisement, her application was accepted and she was allowed to participate in the recruitment process. 7. Moreover, after participating in the written test and interview, the petitioner was declared successful. Thereafter, the petitioner was asked by the office of the Opposite Party No.2 to remain present in the office on 27.04.2022 for verification of her certificates/ testimonials. Pursuant to the aforesaid notice to remain present in the office Opposite Party No.2 the petitioner appeared along with original as well as attested copies of her certificates which were accepted by the authorities and found to be in conformity with the information provided by the petitioner in her application. Accordingly, the petitioner had a legitimate expectation that she will be given appointment against the advertised post under the SEBC women reserved category. 8. Most unfortunately, the same did not happen. On the contrary, the petitioner received an order from the office of Opposite Party No.2 whereunder the petitioner has been intimated that the Opposite Party No.2 has forfeited the candidature of the petitioner on the ground that she does not belong to simple graduate category, rather she is having professional degrees. Challenging the aforesaid order under Annexure-3 to the writ application, learned counsel for the petitioner submits that such an order forfeiting the // 5 // candidature of the petitioner is highly illegal, irrational and unreasonable. 9. It is further contended that the acquisition of higher qualification/ additional qualification/ dual qualification is more advantageous to the employer. It was also submitted by learned counsel appearing for the petitioner that in the absence of any restriction in the advertisement itself with regard to educational qualification, the conduct of Opposite Party no.2 in forfeiting the candidature of the petitioner is highly unreasonable and unsustainable in law. 10. Learned counsel for the petitioner further specifically argued that in the absence of any bar in Clause-6 of the advertisement with regard to acceptance of candidature of a candidate possessing professional degree, the Opposite Party No.2 has exceeded his authority and jurisdiction and moreover, he has passed an illegal and arbitrary order and thereby forfeiting the candidature of the petitioner. In other words, it was contended by learned counsel appearing for the petitioner that in the absence of any conditions/ stipulation in the advertisement under Annexure-1 or in the instruction given to the candidates with regard to forfeiture of candidature in the event it is found that the aspiring candidate possesses dual degree or professional degree, the consequential conduct of forfeiture of candidature of the petitioner is highly illegal, arbitrary and as such unsustainable in law. 11. In addition to the above, the learned counsel for the petitioner would also argue that it is the IDCO authorities who had fixed the eligibility criteria in the advertisement including the educational qualification in clause-6 of the advertisement. He further contended that as per the educational qualification // 6 // prescribed, a candidate must have possessed a degree in Arts/ Science or Commerce with MBA certificate from recognized and affiliated college/ institution/ university. Therefore, it was argued before this Court that the IDCO authorities have already a prescribed qualification in professional courses like MBA. Therefore, they again cannot take a u-turn and say at this juncture that since the petitioner’s degree in BSC (Forestry) is a professional degree her candidature is invalid and therefore, the petitioner’s candidature is liable to be forfeited. In such view of the matter, it was further argued that the authorities have acted contrary to the condition stipulated by them in the advertisement under Annexure- 1. Learned counsel for the petitioner further asserted that the impugned office order has been issued only with the intention to deprive the petitioner of her legitimate right and to give appointment to another person who is less meritorious than the petitioner. Therefore, it was also contended before this Court that while issuing the impugned order the authorities have compromised with the merit while selecting candidates for appointment to the advertised post. 12. Learned counsel for the petitioner further contended that the Opposite Party-authorities are guilty of non-compliance of the principles of natural justice. In the said context, it was argued before this Court that although the petitioner was found successful in the recruitment process she was asked to appear before the Opposite Party No.2 for verification of her certificates and her certificates were duly verified and no objection was raised at that point of time. It was also contended that no opportunity whatsoever was given to the petitioner to explain her position or the degree certificate she was possessing before passing the impugned order. The impugned order under Annexure-3 has been issued forfeiting // 7 // the candidature of the petitioner at the final stage without providing any opportunity to the petitioner to show cause with regard to any discrepancy/ objection, if any, raised by the Opposite Parties. Therefore, the impugned order under Annexure-3 is vitiated by non-compliance of the mandatory principle of natural justice in the present case. 13. In course of his argument, learned counsel for the petitioner submitted that the conduct of the Opposite Parties in issuing the order under Annexure-3 is not only illegal and unreasonable, the same is also in violation of the underlying principle of Article 14, 16 and 21 of Constitution of India. Learned counsel for the petitioner also referred to the judgment of this Court in Bhuban Mohan Behera vs. State of Odisha and Anr in W.P.(C) No.3617 of 2022 decided on 31.05.2022 and the judgment of the Hon’ble Supreme Court in the case of Puneet Sharma vs. State of Himachal Pradesh in Civil Appeal No.1318-1322 of 2021 arising out of SLP(C) Nos.10533-10537 of 2020. By referring to the aforesaid judgment, learned counsel for the petitioner submitted that in the above referred cases, the candidates in question were having dual qualification and accordingly, their candidatures were rejected by the authorities. However, the Hon’ble Supreme Court as well as this Court have categorically held that such rejection of candidature of the applicant having higher qualification is bad in law and accordingly, the prayer of the applicants were allowed. 14. The contesting Opposite Party Nos.2 & 3 have filed a joint counter affidavit. In the counter affidavit by the Opposite Party Nos.2 & 3 it has been stated that the advertisement dated 24.09.2021 was floated by the IDCO for appointment to the advertised post on regular basis. It has also been stated that the // 8 // Opposite Parties, as per Odisha Industrial Infrastructure Advertisement Corporation (Method of Recruitment and Condition of Service) Regulations, 2019, floated the advertisement for recruitment to the advertised post. Further, the counter affidavit reveals that the IDCO in its 112th Board of Director Meeting held on 09.11.2017 approved the above noted Regulation, 2019. Thereafter, the Government of Odisha has also approved the same and such approval was indicated to the IDCO vide letter dated 02.08.2019 and accordingly the regulation was notified by the IDCO vide order dated 14.08.2019. 15. Counter affidavit of Opposite Party Nos.2 & 3 further reveals that the approved cadre strength under the Regulation 2019 provides for educational qualification for the post of Assistant Manager (Admn./MSME) in the IDCO. The regulation 2019 further provides that the candidate must have possessed the degree in Arts/ Science or Commerce with MBA certificate from recognized and affiliated College/ Institution/ University. Vide letter dated 11.01.2021 the IDCO has engaged M/s. EdCIL India Limited (an approved agency to conduct recruitment test for CPSU to conduct the recruitment examination in respect of the advertisement under Annexure-1. Counter affidavit further reveals that the petitioner submitted her application wherein she has indicated that she has a graduation degree in Science without indicating B.Sc.(Forestry). 16. Subsequently, during verification of certificate it was detected by the Opposite Parties that the present petitioner is possessing Bachelor Degree in Science i.e. B.Sc.(Forestry) and MBA. Similarly, it was also detected during scrutiny that five other candidates were also having professional degree like B.Tech, BBA, B.Sc.(ITM). Since, it was found that the petitioner is possessing a // 9 // professional degree, the Opposite Parties came to a conclusion that the same does not fulfilling the educational qualification as prescribed for recruitment i.e. degree in Arts/ Science or Commerce with MBA certificate as mention in the advertisement under Annexure-1. Accordingly, the candidature of the petitioner as well as five other candidates were forfeited on the ground that they do not belong to the “Simple Graduate Stream” rather they are having professional degree. 17. The counter affidavit, further reveals that information regarding Petitioner’s degree was sought for from the OUAT from where the petitioner has acquired the degree qualification i.e. B.Sc. (Forestry). The OUAT was requested by IDCO to provide information as to whether B.Sc. (Forestry) is a professional degree or not? The OUAT, BBSR intimated vide letter dated 17.06.2022 that the Bachelor of Science (Forestry) is professional degree course. Therefore, the Opposite Parties in their counter affidavit have stated that since B.Sc. (Forestry) is not in conformity with the educational qualification prescribed in the advertisement under Annexure-1, the candidature of the petitioner have been forfeited. 18. A perusal of the counter affidavit further reveals in para-7 that pursuant to the advertisement for recruitment to 14 posts, 5 posts were to be filled up by women candidate. The recruiting agency i.e. EdCIL accepted the application through online mode and conducted the written test among the candidates on 05.01.2022 at different centers. Thereafter, the merit list of the candidate who have appeared in the written test were prepared by the recruiting agency for the advertised posts. It has also been stated in the counter affidavit that basing on the marks obtained by the candidates in categorywise, 14 numbers of candidates were called // 10 // upon to attend the certificate verification of 27.04.2022, 28.04.2022 by the IDCO. In view of the above facts, this Court is of the considered view that so far the advertisement and the consequential