The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17424 of 2023 Satyabrata Giri …. Petitioner Mr. K.C. Sahu, Advocate -versus- State of Odisha and others …. Opposite Parties . CORAM: Mr. N.K. Praharaj, A.G.A. JUSTICE A.K. MOHAPATRA ORDER 05.03.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore humbly prayed that the Hon’ble Order No. 04. Court be graciously pleased to pass following relief(s): (i) The Hon’ble Court be pleased to Admit the writ petition and call for the records/documents, (ii) The Hon’ble Court be pleased to direct the opp. Parties impugned for modification of eligibility criteria of the advertisement under Annexure-3 relating to only allowing the Diploma in Medical Laboratory Technology (DMLT) candidates by declaring the same as erroneous and illegal one & contrary to the guideline issued by the Govt. of Odisha in H & F.W. Deptt. So also DMET, Odisha under Annexue-8 (Series), the // 2 // as per (iii) The Hon’ble Court be pleased to further direct the Opp. Parties for allowing the higher qualified BMLT candidates and became automatically eligible in the matter of recruitment of Lab. advertisement Clause- Technicians 3(A)(viii)(b) so also as per guideline under Annexuer-8 (series) with further directing the Opp. Parties more specifically opp. Arty no.5 to issue the order of appointment in favour of the petitioner the in view of his selection recruitment examination so also verification of his documents made as per Annexure-5 & 6 within a time bound period for the interest of justice. (iv) The Hon’ble Court be pleased to pass any other Writ(s), Direction(s), Order(s) as this Hon’ble Court may be deemed fit and proper.” in
Legal Reasoning
4. Mr. K.C. Sahu, learned counsel for the Petitioner, at the outset, submitted that the Petitioner has passed the course of Bachelor in Medical Laboratory Technology (BMLT) from the Centurion University, Bhubaneswar during the academic year 2016-19. Thereafter, the Petitioner got himself registered with the Odisha State Council. On 24.11.2021, the Petitioner came across an advertisement published by Odisha Sub-ordinate Staff Selection Commission (OSSSC) for recruitment to 1100 posts of Laboratory Technician under Annexure-3 to the writ petition. Pursuant to the aforesaid advertisement, the Petitioner submitted his candidature by submitting a duly filling form along with supporting documents. Thereafter, upon scrutiny of his application, the Petitioner was asked to appear in the written examination which was held on 06.02.2022. 5. The OSSSC after conducting the recruitment process prepared a final merit list and recommended 11 candidates for appointment to the post of Laboratory Technician to the CDM & PHO, Bhadrak
Decision
under Annexure-6 to the writ petition. Further, referring to the order under Annexure-6, learned counsel for the Petitioner submitted that the name of the Petitioner appears at Serial No.4 of the list. He // 3 // further contended that out of the 11 recommended candidates, 10 candidates were appointed, however, the Petitioner was not given appointed. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ petition. 6. At the time of admission of the present writ petition, this Court in I.A. No.7951 of 2023 passed an interim order vide order dated 22.06.2023 to the effect that one post of Laboratory Technician pursuant to the advertisement under Annexure-3 in respect of Bhadrak district shall not be filled up till the next date. Accordingly, learned counsel for the Petitioner submitted that one post of Laboratory Technician is still lying vacant. 7. In course of his argument, learned counsel for the Petitioner drawing attention of this Court to the order passed by this Court on 11.04.2023 in Rakesh Baroi v. State of Odisha and others (W.P.(C) No.36664 of 2022). Further referring to the aforesaid order dated 11.04.2023, learned counsel for the Petitioner submitted that an identical issue was involved in the aforesaid writ application. However, the case involved in the aforesaid writ petition was pertaining to the post of Pharmacist. So far the present Petitioner is concerned, he was selected for the post of Laboratory Technician. The legal issue involved in both the writ petitions is stated to be identical. This Court on a careful analysis of the factual background and further taking into consideration the judgment of the Hon’ble Supreme Court in Puneet Sharma vrs. Himanchal Pradesh State Electricity board Ltd., reported in AIR 2021 Supreme Court 2221 and the judgment of this Court in Durga Madhab Dakua and another vrs. State of Odisha (WPC(OAC) No.1889 of 2017 decided on 27.09.2021), has categorically held that B. Pharma Degree being a higher degree than the Diploma in Pharmacy is also available to be // 4 // considered for appointment to the post of Pharmacist. Finally, while disposing of the writ petition, this Court quashed the letter dated 10.12.2021 under Annexure-9, so far the same relates to the appointment of the Pharmacist and the matter was remanded back to the Directorate of Health Services, Odisha, Bhubaneswar to consider the case of the Petitioner afresh. A direction was also issued to the Chief District Medical & Public Health Officer, Khurda in the above noted case to issue appointment letter in favour of the Petitioner, if the post is not filled up, subject to verification of the name of the Petitioner as has been recommended by OSSSC for such appointment. 8. Learned Additional Government Advocate, on the other hand, referring to the advertisement dated 24.11.2021 under Annexure-3 to the writ petition, submitted that the said advertisement under clause-3 provides the eligibility criteria. By referring to Clause-3(A)(viii), learned Additional Government Advocate submitted that the eligibility criteria prescribes +2 Science and Diploma in Medical Laboratory Technology from Government Medical College & Hospitals of the State or any other private institutions recognized by Government of Odisha or All India Council of Technical Education. In such view of the matter, learned Additional Government Advocate submitted that although the Petitioner was selected by OSSSC, however, during verification of certificates, it was found that the Petitioner is having a degree in Bachelor in Medical Laboratory Technology (BMLT), no appointment order was issued in favour of the Petitioner as same would have been contrary to the terms of the advertisement. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality in not issuing appointment letter in favour of the Petitioner. Accordingly, it is submitted that the writ petition is // 5 // devoid of merit and, as such, the same should be dismissed. 9. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record, this Court observes that the issue involved in the preset writ petition was directly and substantial an issue in Rakesh Baroi’s case (supra) and this Court vide a detailed order and by taking into consideration various judgments of this Court as well as of the Hon’ble Supreme Court, directed the CDM & PHO to issue appointment letter in favour of the Petitioner. So far the present Petitioner is concerned, his eligibility is to be tested against the principles prescribed under Clause-3 of the advertisement. On a perusal of the Clause-3(A)(viii), it appears that the prescribed qualification is +2 Science and Diploma in Medical Technology under sub-clause(a). Under sub-clause(b), it has been provided that any candidate having higher qualification like Bachelor in Medical Laboratory Technology (BMLT) or MLT shall be eligible to apply provided they have obtained the qualification as above. 10. On a careful consideration of the factual background of the case and the materials on record, this Court found that there is no bar in considering the case of the Petitioner for appointment as the advertisement permits the Petitioner to submit his candidature. Further, the Petitioner is having BMLT Degree, which is an advance course of Diploma in Medical Laboratory Technology, therefore, in the absence of any bar in the advertisement, the Opposite Parties should have been considered the case of the Petitioner for appointment. Moreover it appears that the Petitioner was initially selected by the OSSSC and his name was recommended to the CDM & PHO, Bhadrak along with 10 other candidates. The CDM & PHO while issuing appointment order in favour of 10 other candidates did not issue appointment letter in favour of the present Petitioner. This // 6 // Court is also of the considered view that the job of selection of the candidates falls within the exclusive domain of the OSSSC. Once the name was recommended by the OSSSC after due scrutiny, it is no more open to the requisition agency to examine the same. In the present case, the Petitioner having a better qualification and being recommended by the OSSSC, his case for appointment should have been considered by the CDM & PHO, Bhadrak, i.e. Opposite Party No.5. 11. In view of the aforesaid analysis of facts as well as the legal position and keeping in view the findings arrived at by this Court, the Opposite Party No.5 is directed to issue appointment letter in favour of the present Petitioner as the post against which the Petitioner was selected has been kept vacant by virtue of an interim order of this Court. Therefore, the question of vacancy will not arise, so far the present Petitioner is concerned. Accordingly, the Petitioner is directed to approach the Opposite Party No.5 along with a certified copy of this order. In such eventuality, the Opposite Party No.5 shall do well to issue appointment order in favour of the Petitioner within four weeks from the date of Petitioner approaches the Opposite Party No.5. 12. With the aforesaid observation and direction, the writ petition is disposed of. ( A.K. Mohapatra ) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 10-Mar-2024 16:43:47