The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Deepak Kumar Swain …. Petitioner W.P.(C ) NO.31096 of 2020 Mr. P.K. Ray, Adv. -versus- State of Odisha & Others … Opposite Parties Mr.P.M. Pattajoshi, Advocate (for Opp. Party Nos.2 & 3) Mr. J.K. Mishra, Advocate (for Opp. Party No.4) Mr. B.B. Mohanty, Advocate (for Opp.Party Nos.5 to 7 and 11 to 15)
Legal Reasoning
Mr. A. Singh, Advocate (for Opp. Party No.8 to 10) Mr. S. Routray, Advocate (for Opp. Party Nos.16 to 20) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 04.10.2023 Order No 20. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. P.K. Ray, learned counsel for the Petitioner, Mr. P.M. Pattajoshi, learned counsel appearing for Opp. Party-University and learned counsel appearing for the private Opp. parties. 3. The present Writ Petition has been filed inter alia with the following prayer. “In the circumstances, it is therefore humbly prayed that this Hon’ble Court may be graciously pleased to issue rule NISI on the Opposite parties, asking them to show cause as to why the provision for holding a written test in the impugned advertisement shall not be struck down and upon hearing the parties be further pleased. (i) To issue WRIT/ORDER striking down the provision for written test appearing in CI.H(b) (ii) (iii) (iv) (v) // 2 // of me impugned advertisement (Annexure-4) so is concerned; the Agricultural Statistics far as To direct the Opposite Party No.2 and 3 to bring advertisement/ corrigendum accordingly; a modified out To strike down the illegal allotment of quota against the various reserved categories and to direct the Opposite Party No.2 and 3 to make necessary provision for reservation against the SEBC category. To pass any further writ(s) and/or order(s) as deemed fit and proper to meet the ends of justice. To quash the office order NO.5455 dated 23.03.2021 issued by the Orissa University of Agriculture and Technology vide Annexure-7 and to direct the Opposite Parties to start the selection process for the posts of Assistant Professor(Agriculture Statistics) afresh in terms of the existing rules of that time.” 4. Learned counsel for the Petitioner contended that considering the nature of prayer made, this Court while issuing notice of the matter passed an interim order on 17.11.2020 indicating therein that any development through the written test undertaken in the meantime shall remain subject to the result of the Writ Petition. 4.1. It is contended that the prescription indicated in the impugned advertisement to hold the written test is not permissible. It is also the contention of the learned counsel for the Petitioner that no reservation for candidate belonging to SEBC category having been provided in the advertisement, the selection procedure is not sustainable in the eye of law. It is accordingly contended that the prayer as made in the Writ Petition is liable to be allowed. 5. Mr. P.M. Pattajoshi, learned counsel appearing for the University-Opp. Party Nos.2 & 3 and learned counsels Page 2 of 4 // 3 // appearing for the private Opp. parties on the other hand contended that on the face of the challenge made in the Writ Petition with passing of the interim order on 17.11.2020, Petitioner participated in the written test so conducted on 18.03.2021. In the written test so conducted, the Petitioner has secured only <4= mark. The said fact is also reflected in the communication issued by the University on 06.05.2023 vide Annexure-E/5 to the counter so filed by Opp. party No.5. 5.1. Learned counsel appearing for the Opp. Parties accordingly contended that since the Petitioner on his own participated in the selection process by taking the written test and he has failed to qualify the written test, the Petitioner is not permitted to challenge the holding of the written test. It is also contended that basing on the selection process so undertaken, the private opp. parties have been provided with the appointment in the meantime and they have all joined in their respective posts. It is also contended that once the Petitioner participated in the selection process by taking the written test, he cannot challenge the process of selection after becoming unsuccessful, even though the Writ Petition was filed prior to taking up such written test by the Petitioner. 5.2. Mr. B.B. Mohanty, learned counsel appearing for Opp. Party No.5 in support of the stand relied on a decision of the Hon’ble Apex Court rendered in the case of Ashok Kumar and Another V. State of Bihar and Others reported in AIR 2016 S.C. 5069. Hon’ble Apex Court in Paragraph 11 & 15 of the said judgment has held as follows. 11. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly Page 3 of 4 // 4 // not open to the appellants. The principle of estoppel would operate. 15. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. During the course of the hearing, this Court is informed that four out of six candidates, who were ultimately selected figured both in the first process of selection as well as in the subsequent selection. One candidate is stated to have retired.” 6. Mr. Ray, learned counsel appearing for the Petitioner does not dispute the contention raised by the learned counsel for the private opp. parties regarding his participation in the written test so held on 18.03.2021. 7. Having heard learned counsel for the parties and in view of the admission that the Petitioner after challenging the stipulation contained in the advertisement with passing of the interim order on 17.11.2020 participated in the written test held on 17.03.2021 and has failed to qualify the same, this Court is not inclined to entertain the prayer as made in the Writ Petition. Accordingly the Writ Petition is dismissed. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 29-Jan-2024 13:51:50 Page 4 of 4