The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 14632 of 2024 Dr. Sukamal Das Petitioner M/s. Avijit Mishra, Advocate & Associates …. -Versus- Director, Acharya Harihar Post Graduate Institute of Cancer, Cuttack & Another …. Opposite Parties Mr. N.K. Praharaj, AGA M/s. Dr. Satchidananda Patnaik, Advocate & Associates for O.P.No.1 CORAM: MR. JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:28.10.2024 1. Instant writ petition is at the behest of the petitioner challenging the impugned order of rejection under Annexure-8 and to direct opposite party No.1 to issue letter of appointment in his favour vis-a-vis the vacant post of Assistant Professor in the discipline of Head and Neck Surgery with respect to the advertisement (Annexure-1) and walk in-Interview held on 27th May, 2024 for the said purpose on the grounds stated therein. 2. According to the petitioner, he completed MBBS course from Utkal University in the year 2010; post-graduation in the subject of ENT from VIMS, Kolkata in 2016 and received a special training for a year in the discipline of Head and Neck surgery from the said institution followed by further two years training in the same discipline from CMC, Vellore and thereafter, got through the selection process and was appointed in the post of Assistant Professor in the Department of ENT at SJMCH, Puri in 2021 and continued till December, 2022 and thereafter, in the same capacity W.P.(C) No. 14632 of 2024 Page 1 of 11 at DDMCH, Keonjhar from January, 2023 till the time of his resignation on 26th May, 2024. It is pleaded that while the petitioner was continuing in the post of Assistant Professor at Keonjhar, the advertisement under Annexure-1 was published by opposite party No.1 for filling up of the posts of Assistant Professor (Contractual) in different disciplines of Super Specialty and Broad Specialty including three posts in the discipline of Head and Neck Surgery and accordingly, he applied for the same but before that, tendered his resignation at Keonjhar on 26th May, 2024. The contention is that the petitioner was continuing as Assistant Professor in the discipline of ENT which is a Broad Specialty and hence, was the aspirant from the posts advertised, as the same is in relation to a Super Specialty post, by no stretch of imagination, opposite party No.1 could debar him to opt for better opportunity in his professional, career inasmuch as, in a similar advertisement (Annexure-2), no such restriction had been imposed. The further contention is that the petitioner submitted the application with the NoC obtained and appeared the walk-in interview held on 27th May, 2024 and as such, it was duly communicated to opposite party No.2 vide Annexure-3. It is claimed that the petitioner was on leave from 11th May, 2024 till 25th May, 2024 and after the leave period was over, he joined at Keonjhar on 26th May, 2024 and on the same day, submitted his resignation from the post of Assistant Professor, ENT and referred to Annexure-6 in that regard and though, he was allowed to appear the walk-in interview on the date fixed and that at no point of time, was denied the participation in the selection process, was eagerly waiting for the W.P.(C) No. 14632 of 2024 Page 2 of 11 result and on 6th January, 2024, opposite party No.1 published the provisional merit list, wherein, only one candidate was shown as selected for the post, he had applied for out of total three vacancies advertised and a reject list (Annexure-8) was released, which revealed that the petitioner’s candidature was rejected, whereafter, representation was moved vide Annexure-9 but the same did not yield any result and the final select list (Annexure-10) dated 10th June, 2024 was ultimately published. As it is pleaded, since the rejection of candidature of the petitioner is not legally sustainable, he having applied for a Super Specialty post and had tendered resignation by the time of walk-in interview on 27th May, 2024, the rejection list as at Annexure-8 as against him is liable to be interfered with and quashed with consequential directions issued. 3. Opposite party No.1 filed the counter affidavit and denied the contention of the petitioner and pleaded that as per the stipulation of the advertisement (Annexure-A), the petitioner was debarred from being appointed for the post advertised, since as on the date of walk-in interview held on 27th May, 2024, he was still in service. It is further pleaded that on receiving instructions from the authority concerned, the letters of appointment were issued in favour of the selected candidates and furthermore, it was decided to publish the selected and wait listed candidates in AHPGIC. It is also pleaded that a written grievance dated 29th May, 2024 was received by the office of opposite party No.1 on 31st May, 2024 alleging therein the fact that the petitioner flouted the stipulation of the advertisement by applying for the post of Assistant W.P.(C) No. 14632 of 2024 Page 3 of 11 Professor, Head and Neck Surgery in spite of being engaged as a contractual doctor at Dharanidhar Medical College, Keonjhar in the Department of ENT, which was enquired into and found to be correct and therefore, the candidature was rejected and therefore, no case is made out by him challenging Annexure-8 and hence, the writ petition should be dismissed. 4. A rejoinder affidavit is filed by the petitioner pleading therein that there was no bar for the petitioner to apply for a Super Specialty post for which NoC was granted and as far as the condition in Annexure-2 that candidates continuing as faculties in any Government Medical College of the State, VIMSAR, Burla or HPGIC, Cuttack either on contractual or deputation are to be eligible to apply for higher level posts only does mean and refer to Super Specialty posts while denying the contention of opposite party No.1 that it was for a post of Associate Professor and Professor with a plea that such a condition could not have been stipulated while holding recruitment to fill up the vacant posts of Assistant Professor in Government Medical Colleges. It is also pleaded that the condition as per Annexure-1 is illegal which debars candidates to appear and apply for a Super Specialty post, hence, therefore, the reject list in so far as related to him should be quashed with a direction to opposite party No.1 to issue the letter of appointment in his favour for the post in question applied.
Legal Reasoning
deputation. It is settled law that the candidature of an aspirant can be rejected at any stage and even appointment is provisional and the same cannot be claimed as a matter of right even though one clears the selection process. In case of any suppression of fact noticed or the condition(s) stipulated in the advertisement is/are shown not to have been fulfilled by a candidate, the inevitable consequence would be, rejection of candidature. In the instant case, irrespective of any plea with reference to Annexure-2 and whether, the post advertised under Annexure-1 was for any Specialty post in the department of ENT, the petitioner having not fulfilled one of the conditions that a candidate shall not be in service, the Court having given its anxious consideration reaches at conclusion that opposite party No.1 did not commit any error or illegality with the publication of the reject list i.e. Annexure-8. 9. As regards the stipulation contained in Annexure-1, Mr. Praharaj, learned AGA and Dr. Patnaik, learned counsel for opposite party No.1 would further submit that the petitioner having applied for the post as per Annexure-1 is estopped from W.P.(C) No. 14632 of 2024 Page 8 of 11 challenging the same after being unsuccessful. In N.T. Devin Katti & others Vrs. Karnataka Public Service Commission & others (1990) 3 SCC 157, it is held by the Apex Court that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection but if he is eligible and he is otherwise qualified in accordance with the relevant rules and terms contained in the advertisement, he does acquire a right of being considered for selection in accordance with the rules and cannot therefore be deprived of that limited right and it was a decision in connection with the employer changing the qualifications prescribed in the advertisement midstream. The decision is of course not directly applicable to the case at hand but it reminds that a candidate does not acquire any vested right of selection, a selection which has to be held in accordance with rules and in terms of the advertisement published. In the case at hand, the petitioner did apply for the post and was allowed to participate but the same is not a vested right and since on receiving a complaint, an enquiry was held and the same revealed that he was still in service, opposite party No.1 rightly rejected his candidature. In so far as challenging the stipulation of the advertisement i.e. Annexure-1 is concerned, the petitioner cannot be allowed to blow hot and cold having applied for the post advertised and thereafter, on being unsuccessful, to challenge the condition and criteria of the same. In Maharashtra Public Service Commission Vrs. Sandeep Shriram Warade & others (2019) 6 SCC 362, it is held that Court cannot lay down conditions of eligibility nor can it delve into issue with regard to desirable qualifications W.P.(C) No. 14632 of 2024 Page 9 of 11 being at par with essential eligibility by an interpretative rewriting of the advertisement and such an exercise cannot be undertaken in the garb of judicial review. The petitioner, in the present case, is subservient to Annexure-1 and the condition contained therein and cannot avoid it with any such plea further stating that it was and meant for a Super Speciality post. It is best known and hence, should be left to opposite party No.1 to set out the criteria and conditions while inviting applications as per Annexure-1. Whether such a condition denying faculty members of the Government College in the State, VIMSAR, Burla is a criterion which can be said to be well thought of and conceived by opposite party No.1, to which, the Court is not inclined to intervene. The petitioner should have challenged such a condition of Annexure-1 before the selection process and apart from above, he cannot be allowed to challenge it later on upon rejection of his candidature. The Court at the cost of repetition concludes that the petitioner failed to fulfill one of the conditions stipulated in Annexure-1 and as he was in service during the time of selection and even till the letters of appointment issued in favour of the selected candidates, for being discharged from duty w.e.f. 26th June, 2024. The petitioner being alive to the above condition consciously applied for the posts advertised and hence, according to the Court, he cannot now be allowed to turn around challenging the same with any such plea and that too, with reference to Annexure-2. Each and every selection process is subject to the conditions as per the advertisement and hence, according to the Court, the petitioner cannot be allowed to turn back challenging one of such W.P.(C) No. 14632 of 2024 Page 10 of 11 stipulations contained therein with any such plea. Unless and until, a condition stipulated in an advertisement is found to be patently illegal or in violation of the principle of natural justice, there is no scope for judicial review. It is claimed that the petitioner has lost the service and at the same time not selected for the advertised post and hence, his professional career is at stake and virtually ruined. According to the Court, the petitioner could have well anticipated the consequences for having appeared the walk-in interview, at a time when, he was still in service, which is deemed to have continued till 26th June, 2024, the date, on which, he was relieved from duty and therefore, such a contention is unacceptable. Such other plea as has been advanced by Mr. Mishra, learned counsel for the petitioner demanding an interpretation vis-à-vis the advertisement referring to Annexure-2 is also liable to be rejected. Hence, having considered the pleadings on record and rival conditions, the conclusion of the Court is that the petitioner’s candidature has been rightly rejected by opposite party No.1 with the reject list (Annexure-8) being published. 10. Hence, it is ordered.
Arguments
5. Heard Mr. Mishra, learned counsel for the petitioner and Mr. Praharaj, learned AGA for opposite party No.1 besides Dr. Patnaik, learned counsel for opposite party No.1. W.P.(C) No. 14632 of 2024 Page 4 of 11 6. Mr. Mishra, learned counsel for the petitioner submits that the condition, such as, faculty members in Government Medical College of the State VIMSAR, Burla on contractual or deputation not to be eligible to apply for the advertised post is illegal and hence, not tenable, as in an earlier occasion, to fill up the vacant posts in the Medical Colleges in the feeder cadre, the same was allowed and such eligibility to apply for higher level posts only refers to the Super Specialty posts. The contention of Mr. Mishra, learned counsel is that the petitioner was in a Broad Specialty and hence, applied for the Super Specialty post, hence, to debar and reject his candidature for continuing as faculty in Government Colleges VIMSAR, Burla cannot be justified. The further contention is that the petitioner had already tendered resignation before the walk-in interview and as such, there was no suppression of fact, which is alleged by opposite party No.1. It is claimed that no such occasion had arisen during the selection process to prompt the petitioner to disclose the fact that he was in service and submitted resignation on 26th May, 2024 and therefore, the allegation that such a fact was suppressed is totally incorrect and Mr. Mishra, learned counsel pleads that the petitioner in anticipation of selection for the posts advertised, not only obtained the NoC but also tendered resignation, a day before the walk-in interview and at present, he is nowhere, as the resignation was duly approved and accepted and was relieved from duty w.e.f. 26th June, 2024(A.N.) and it is on account of a false narrative with a plea that a complaint was received against him regarding continuation of his job at DDMCH, Keonjhar, the candidature was rejected and W.P.(C) No. 14632 of 2024 Page 5 of 11 it is only to deprive him from the selection and appointment, all the more when, the allegation was received from a third party having no locus standi. 7. On the contrary, Mr. Praharaj, learned AGA for the State justifies the reject list i.e. Annexure-8 and submits that opposite party No.1 rightly rejected the candidature as the petitioner was still in service till 26th June, 2024, which is in clear violation of the condition stipulated in Annexure-1. Dr. Patnaik, learned counsel for opposite party No.1 reiterates the facts pleaded on record and submits that the petitioner is guilty of mischief and suppression of fact that he was in a Government college as a faculty as on the date of walk-in interview held on 27th May, 2024 and for the stipulation contained in the advertisement, rightly the candidature was rejected with the reject list under Annexure-8 being published. It is further contended by Dr. Patnaik, learned counsel that the condition in Annexure-2 as to eligibility for the higher-level posts relate to the post of Associate Professor or Professor and as in any case, the petitioner did not fulfill the criteria fixed as per Annexure- 1, no illegality has therefore been committed by opposite party No.1 in rejecting his candidature. 8. On a bare reading of Annexure-1, the Court finds that the candidates, who are continuing as faculties in any of the Government College of the State, VIMSAR, Burla, either on contractual or deputation are not eligible to apply for the post of Assistant Professor (Contractual) at AHPGIC, Cuttack. Such condition is challenged by the petitioner and Mr. Mishra, learned W.P.(C) No. 14632 of 2024 Page 6 of 11 counsel appearing for him referring to Annexure-2 by claiming that in the said advertisement one was eligible to apply for higher level posts which means for the Super Specialty posts, hence, in the present advertisement, such a condition is out rightly unjust and undesirable. Whether, it was for any higher post to mean a Super Specialty post as referred to in Annexure-2, a debate raised by both the sides, which in the considered view of the Court pales into insignificance for the reason that the petitioner is to be governed by Annexure-1 and stipulations contained therein, as according to which, he was not eligible to apply. It is not in dispute that the petitioner tendered resignation just a day before the walk-in interview but as on the date of such interview, he was in service as a faculty member in Dharanidhar Medical College & Hospital, Keonjhar. No doubt for issuance of NoC, the Dean & Principal, Dharanidhar Medical College & Hospital, Keonjhar immediately forwarded on the request of the petitioner by letter dated 21st May, 2024 as at Annexure-3 but the fact remains, as on 27th May, 2024, so to say, as on the date of walk-in-interview and during the course of selection, he was in service, as such resignation was finally accepted and was relieved from duty w.e.f. 26th June, 2024. In other words, the petitioner could not fulfill the condition as per Annexure-1 as he was in Government service and was finally discharged towards the end of June, 2024. Unless and until, the resignation tendered by him was accepted, the petitioner is held to be in service. Mere tendering of resignation on 26th May, 2024 was not to be sufficient but its acceptance before the commencement of selection process with the walk-in-interview. W.P.(C) No. 14632 of 2024 Page 7 of 11 Rather, the petitioner is said to have continued in the Government College at Keonjhar till 26th June, 2024. The plea that resignation by itself is sufficient to appear the walk-in interview for the posts advertised as per Annexure-1 cannot be accepted for the reason that the condition is clear and conspicuous which is to the effect that as on the date of advertisement or for that matter, till such time the selection process is over, the candidates applying for the posts shall not be working in any Government Colleges in the State as well as VIMSAR, Burla either on contractual basis or on
Decision
11. In the result, the writ petition stands dismissed. 12. In the circumstances, however, there is no order as to costs. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, CTC Date: 30-Oct-2024 18:14:04 kabita W.P.(C) No. 14632 of 2024 Page 11 of 11