The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.23296 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Khemraj Dewangan …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. S.K. Das For Opp. Parties : Mr. C.K. Pradhan, AGA Mr. J. Biswal, Advocate for O.P. No.4 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:21.11.2024 and Date of Judgment:21.11.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. S.K. Das, learned counsel for the
Legal Reasoning
4.6. This Court in Para 12 of the Judgment in the case of Kunilata Dutta has held as follows:- “12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Utteranchal and others, (2008) 4 SCC 171-2009 AIR SCW 3265, the Apex Court held that when the petitioner took a Chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estoppel and precluded the questioning the said selection process.” 5. Learned Addl. Govt. Advocate on the other hand contended that since petitioner has assailed the selection and appointment of O.P. No.4 with the plea that he does not possess the required qualification, this Court is competent to look into the matter. The stand taken in Para-10 of the counter reads as follows: “10. That, it is respectfully submitted that in so far as the allegation of the petitioner that the mark secured in the Sastri Examination, has not been considered while publishing Page 12 of 15 // 13 // considering that while
Arguments
petitioner, Mr. C.K. Pradhan, learned Addl. Govt. Advocate for the State and Mr. J. Biswal, learned counsel for the O.P. No.4. // 2 // 2. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “Under the above circumstances, is therefore humbly prayed that the Hon‟ble Court be graciously pleased to quash the selection and appointment of the Opp. Party No.4 as a contractual Hindi Teacher under Annexure-4 and 5 and also the consequential order of the Collector, Nuapada dtd.09.02.2021 under Annexure-8. it And further the Hon‟ble Court be pleased to direct the Opposite Party No.2 to appoint the petitioner as contractual Hindi Teacher pursuant to advertisement under Annexure-1 and to grant him all consequential service and financial benefits within a stipulated period as deem fit and proper.” 3. It is the case of the petitioner that pursuant to the advertisement issued by O.P. No.2 on 10.10.2018 under Annexure-1 series, petitioner as well as O.P. No.4 made their applications as against the post of Hindi Teacher. It is contended that in the advertisement issued under Annexure-1, the qualification as against the post of Hindi Teacher as prescribed reads as follows:- (45% “Hindi Teacher: Bachelor Degree from a recognized University with Hindi as one of the elective subject with minimum 50% marks in aggregate SC/ST/PH/OBC/SEBC for candidates) or with Rashtra Bhasa Ratna from Rastra Bhasha Pracher Samiti, Vardha or with Sastri from Odisha Rastra Bhasha Parishad, Puri or with Snatak (acquire by June, 2005), the date upto which the temporary recognition has been Page 2 of 15 // 3 // granted) from Hindi Sikshya Samiti, Odisha, Cuttack, or an equivalent Degree from a recognized Institution with at least 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/ B.H.Ed. (a course prescribed by NCTE) from a Institution recognized by NCTE) and affiliated to a recognized university/B.Ed. in Hindi (a course prescribed by NCTE) from Dakshin Bharat Hindi Prachar Sabha, Madras and Institution recognized by NCTE and affiliated to a recognized University. And Bachelor Degree with Hindi as one of the in optional/Honours subject with 50% marks aggregate SC/ST/PH/OBC/SEBC for candidates) and M.A. in Hindi with minimum 50% marks in aggregate from a recognized university.” (45% 3.1. Placing reliance on the resolution issued by the Govt. on 17.09.2016 under Annexure-13, learned counsel for the petitioner contended that O.P. No.4 does not have the requisite qualification to take part in the selection process and consequential selection and appointment vide office order dated 06.12.2019 so issued by O.P. No.2 under Annexure-5. In the said order, name of the private O.P. No.4 finds place at Sl. No.4. 3.2. Learned counsel for the Petitioner placing reliance on the resolution available under Annexure- Page 3 of 15 // 4 // 13, contended that for the post of Hindi Teacher the prescribed qualification is as follows:- “Hindi Teacher:- 1. Bachelor‟s degree from a recognized University with Hindi the elective/Optional/Pass/Honours subject with minimum 50% marks in aggregate (45% of SC/ST/PH/SEBC candidates) one as of One of the following Training qualifications a) Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra b) B.H.Ed., a course prescribed by NCTE, from a recognized University/Institution. c) B.Ed. in Hindi, a course prescribed by NCTE, from Dakhin Bharat Hindi Prachar Sabha, Madras Or 2. Bachelor‟s degree University with minimum 50% marks aggregate candidates) from a recognized in SC/ST/PH/SEBC (45% or With One of the following qualifications a) Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha b) Shastri (Hindi) from Orissa Rastrabhasa Parishad, Puri c) Snataka (Acquired by June, 2005, the date up to which the temporary recognition has been granted) from Hindi Sikshya Samiti, Orissa, Cuttack And One of the following Training qualifications: (a) Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra Page 4 of 15 // 5 // (b) B.H.Ed., a course prescribed by NCTE, from a recognized University/Institution. (c) B.Ed. in Hindi, a course prescribed by NCTE, from Dakhin Bharat Hindi Prachar Sabha, Madras” 3.3. It is contended that since O.P. No.4 along with his qualification of Bachelor Degree with minimum 50% mark has not passed Rastra Bhasa Ratna/Sastri, he was not otherwise eligible to participate in the selection process. Placing reliance on the documents available vide Annexure-3 series, learned counsel for the petitioner also contended that private O.P. No.4 in his +3 Arts examination has secured less than 50% mark. So in view of the stipulation contained in the Resolution dated.17.09.2016 under Annexure-13, petitioner was not at all eligible to get the benefit of appointment and he was not eligible to participate in the selection process even. 3.4. It is accordingly contended that since petitioner does not have the required qualification of +3 Arts with 50% of mark along with Sastri from Odisha Rastra Bhasha Parishad, Puri, his candidature Page 5 of 15 // 6 // should not have been entertained by O.P. No.2. Therefore, selection and appointment of O.P. No.4 vide order dated 06.12.2019 under Annexure-5 is also not sustainable in the eye of law and requires interference of this Court. 4. Learned counsel for O.P. No.4 on the other hand contended that in the advertisement issued under Annexure-1, the prescribed qualification as against the post of Hindi Teacher is Bachelor Degree from a recognized University with minimum 50% mark or with Rastra Bhasha Ratna from Rastra Bhasha Prachar Samit, Vardha or with Sastri from Odisha Rastra Bhasha Parishad, Puri along with Snatak from Hindi Sikshya Parangat from Kendriya Hindi Sansthan, Agra or B.Ed. in Hindi from an Institution recognized by NCTE. 4.1. Placing reliance on the documents available under Annexure-3 series, learned counsel for O.P. No.4 contended that O.P. No.4 in addition of passing his +3 Arts examination from Sambalpur University, Page 6 of 15 // 7 // has passed the Sastri examination so conducted by Odisha Rastra Bhasha Parishad, Puri in the examination held in the year 2015. O.P. No.4 has also acquired B.Ed. in Hindi from Dakshin Bharat Hindi Prachar Sabha, Madras. 4.2. It is contended that since in terms of the advertisement issued under Annexure-1 series, O.P. No.4 was having the qualification of Sastri from Odisha Rastra Bhasha Parishad and with B.Ed. in Hindi from Dakshin Bharat Hindi Prachar Sabha, Madras which is not disputed, O.P. No.4 has been rightly selected and appointed and it requires no interference of this Court. 4.3. Learned counsel for O.P. No.4 further contended that the qualification prescribed in the Resolution available under Annexure-13 is with regard to the qualification prescribed by the Govt. to conduct Odisha Secondary School Teacher Eligibility Test and it has nothing to do with the advertisement Page 7 of 15 // 8 // issued under Annexure-1 series i.e. for recruitment to the post of Hindi Teacher. 4.4. It is also contended that the qualification prescribed in the said resolution is not applicable to the recruitment process undertaken pursuant to the advertisement issued on 10.10.2018 under Annexure-1 series. It is also contended that petitioner after participating in the selection process pursuant to Annexure-1, cannot challenge the stipulation contained with regard to the qualification prescribed as against the post of Hindi Teacher. In support of the same, learned counsel for O.P. No.4 relied on the decision of the Hon’ble Apex Court in the case of Madras Institute of Development Studies & Anr. Vs. K. Sivasubramaniyan & Ors. ((2016) 1 SCC 454) and the order passed by this Court in the case of Kunilata Dutta Vs. State of Odisha & Ors. (2010 (Supp. –II) OLR – 437). Page 8 of 15 // 9 // 4.5. Hon’ble Apex Court in Para 14 to 18 of the Judgment in the case of Madras Institute has held as follows:- “14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 15. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) “15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn the round and question Committee. This view gains strength from a decision of this Court in Manak Lal case [Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425] where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9) the constitution of Page 9 of 15 // 10 // „9. … It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.‟ 16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) the petitioners took a chance “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” Page 10 of 15 // 11 // 17. In Manish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) “16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” 18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129] , recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) their right “24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents the had waived advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the respondents.” grievance made question the by to Page 11 of 15 // 12 //
Decision
select list, but in this connection it is humbly submitted that such an allegation made by the petitioner is thoroughly baseless and contrary to the materials available on record. It is submitted the representation submitted by the petitioner dated 28.10.2019, the mark secured by the petitioner in Sastri Examination has been reflected in the merit list, therefore the very selection as well as the appointment of the Opp. Party No.4 has been made in conformity with the advertisement, for which the authorities have not at all committed any illegality in the selection process, for which the Writ Petition is liable to be dismissed.” condition prescribed the in 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that pursuant to the advertisement issued by O.P. NO.2 on 10.10.2018 under annexure-1 series, petitioner and O.P. No.4 applied for the post of Hindi Teacher. As found from the advertisement, the qualification prescribed for the post of Hindi Teacher vide Para-3(d) is Bachelor Degree from a recognized University with Hindi as one of the elective subject with minimum 50 % mark in aggregate or with Rastra Bhasa Ratna or Sastri from Odisha Rastra Bhasha Parishad and training qualification from Hindi Sikshya Parangat from Kendriya Hindi Sansthan, Agra, B.H.Ed. course prescribed by NCTE Page 13 of 15 // 14 // from a recognized institution, B.Ed. in Hindi from Dakshin Bharat Hindi Prachar Sabha, Madras. 6.1. As found from the record, O.P. No.4 not only passed the +3 Arts from Sambalpur University but also in addition to that has passed the Sastri examination so conducted by Odisha Rastra Bhasha Parishad, Puri and B.Ed. from Dakshin Bharat Hindi Prachar Sabha, Madras. This Court after going through the qualification prescribed for the post of Hindi vide Para-3(d) of the advertisement and the document available under Annexure-3 series, is of the view that O.P. No.4 does have the required qualification to participate in the interview. 6.2. Since the only ground of challenge by the petitioner that petitioner does not have the requisite qualification to participate in the selection process as provided under Annexure-13, this Court is of the view that no illegality or irregularity has been committed by the O.P. No.2 in selecting and Page 14 of 15 // 15 // providing appointment to O.P. No.4 vide order dated 06.12.2019 under Annexure-5. 6.3. The qualification prescribed in the Resolution dated 17.09.2016 under Annexure-13 though is meant for the post of Hindi Teacher, but since in the advertisement issued under Annexure-1, the qualification has been prescribed in a manner which was never assailed by the petitioner while participating in the selection process, this Court placing reliance on the decisions cited supra, is also of the view that petitioner after participating in the selection process, cannot challenge the qualification so prescribed in the advertisement. In any view of the matter, this Court finds no merit in the Writ Petition. 7. The Writ Petition accordingly stands dismissed. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 21st November, 2024/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Nov-2024 19:06:50 Page 15 of 15