The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.3236 of 2016 Pravash Ranjan Mohanty ..... Petitioner Dr. J.K. Lenka, Advocate State of Odisha & Ors. -versus- ..... Opposite Parties Mr. B.P. Tripathy, Advocate (Opp. Party No. 1) Mr. M.K. Balabantaray, AGA (Opp. Party No. 2) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 27.06.2024 Order No. 11 1. This matter is taken up through hybrid mode. 2. Heard Dr. J.K. Lenka, learned counsel appearing for the
Legal Reasoning
5.3. 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.” Page 7 of 9. 5.4. It is also contended that there is no such provision to revaluate the answer sheet of any candidate lest that of the Petitioner. It is also contended that even though a prayer has been made to quash the select list, but all the selectees have not been impleaded as Party to
Arguments
Petitioner, Mr. B.P. Tripathy, learned counsel appearing for the Opp. Party No. 1-Commission and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- “In view of the facts mentioned in Para 6 above, the applicant prays for the following relief (s):- i. Quash the Final Select List dated 02.02.2016 issued by the Resp. No-1 for selection of Asst. Executive Engineer( Mech.) held on 30.12.2015 in pursuance of Advertisement No- 3/2015-16 and subsequent appointment orders issued by Resp. No-2 in favour of candidates including Resp. No- 3 & 4 by concurrently holding the same as bad and illegal. Page 1 of 9. ii. Direct / order the Resp. No-1 to revaluate the Answer Sheets of the applicant by an expert committee and to give him appointment as Asst. Executive Engineer (Mech.) visa- vice the Resp. No-3 &4 if he secure more marks than the Resp. No-3 & 4. iii. Pass such other orders/directions as deem fit and proper for the bonafide interest of Justice & fair play.” 4. Learned counsel appearing for the Petitioner contended that pursuant to the advertisement issued by the OPSC vide Advertisement No. 03/2015-16, he made his application as against the post of Asst. Executive Engineer (Mech.). 4.1. It is contended that while issuing the advertisement, Commission never followed the reservation principle in vogue and kept reserved more than 50% of the total vacancies for reserved category candidates. Petitioner accordingly was prejudiced by such action of the Commission. It is also contended that the examination was not conducted by the Commission by following due procedure. It is contended that Petitioner when came across the answer sheet more particularly in Set-B he found that in Paper-I, 8 nos. of questions and in Paper-II 7 nos. of questions are either wrongly putted or not given with right answers. It is accordingly contended that because of such wrong committed by the Commission in Set-B Paper-I & II, total 15 nos. of questions carrying 30 marks were wrongly provided and accordingly Petitioner was prejudiced. 4.2. It is also contended that challenging such irregularity in the examination though the Commission was moved by a number of candidates, but no action was taken and without considering such genuine grievance, OPSC declared the result and published the final select list on 02.02.2016 under Annexure-8 inter alia selecting 24 Page 2 of 9. nos. of candidates comprising all categories and recommended to the Govt. of Odisha in the Department of Water Resources to appoint those selectees as Asst. Executive Engineers (Mech.). Basing on such recommendation Opp. Party No. 2 issued the order of appointment in favour of the selected candidates. 4.3. It is also contended that Petitioner subsequently was intimated by the Commission that Petitioner has secured 124 marks out of 180 marks in Paper-I and 140 marks out of 180 marks in Paper-II thus, securing total 264 marks out of 360 marks in the written examination in UR category. It is contended that Petitioner could not be selected due to the wrong putting of 15 nos. of questions in Paper-I & II in Set-B and in spite of grievance being raised, the Commission never took any action and proceeded with the selection by issuing the select list under Annexure-8. It is accordingly contended that the action of the Commission in issuing the select list is required to be interfered with and further direction be issued to Opp. Party No. 1 to revaluate the answer sheet of the Petitioner by an expert committee and provide him appointment as Asst. Executive Engineer (Mech.) vis-à-vis Opp. Party Nos. 3 & 4, who have been illegally selected. 5. Mr. B.P. Tripathy, learned counsel appearing for the Commission on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Commission. It is contended that pursuant to the advertisement issued under Annexure-1, OPSC took up the recruitment of Asst. Executive Engineer (Civil) and Assistant Executive Engineer (Mech.) in respect of 657 and 25 posts respectively. Such advertisement was issued basing on the Page 3 of 9. requisition submitted by the Govt. and the examination was held on 30.08.2015. Petitioner bearing Roll No. 26326 was a candidate in UR (Male) Category for recruitment to the post of Asst. Executive Engineer (Mech.). Petitioner appeared the written examination held on 30.08.2015 and he was short listed to take viva-voce test. But the Petitioner could not be selected for such recruitment as he scored 275 marks in total though the cut-off mark for UR (Male) Category was fixed at 297. 5.1. It is contended that since the Petitioner could not secured the cut-off mark so fixed for UR (Male) category, his name was not reflected in the select list so published by the Commission under Annexure-8. It is also contended that Petitioner after participating in the selection process and having failed to qualify, he is not supposed to challenge the selection process so followed by the Commission. In support of his aforesaid submission Mr. Tripathy relied on a 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). 5.2. 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 Page 4 of 9. 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) to have voluntarily appeared before “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 the seems Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the 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) „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) “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well successful candidates being as respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be the contesting Page 5 of 9. concerned of 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 the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance 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 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.” constituted. In Om 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 Page 6 of 9. 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) “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 had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single 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 grievance made by the respondents.” Judge [Anil
Decision
the writ petition and the writ petition is accordingly not entertainable due to non-joinder of necessary Parties. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that pursuant to the advertisement issued under Annexure-1, Petitioner participated in the selection process as against the post of Asst. Executive Engineer (Mech.). Petitioner without raising any objection with regard to reservation being made beyond 50%, appeared the test in both written and viva-voce on the date fixed. As found from the record, the cut-off mark in UR Category tough was fixed at 297, but Petitioner has secured only 275 marks. 6.1. It is also found that only after becoming unsuccessful, Petitioner while filing the present writ petition, raised a question with regard to fixation of reservation at more than 50% and wrong putting of question in both Paper-I & II in Set-B. Placing reliance on the decision as cited (supra), this Court is of the view that Petitioner since appeared the examination without raising any objection with regard to the excess reservation made if any, he is not permitted to challenge the process of selection after becoming unsuccessful. 6.2. Not only that since the Petitioner has not secured the cut-off mark, this Court finds no illegality or irregularity with regard to the action of the Commission in issuing the select list vide Annexure-8 Page 8 of 9. on 02.02.2016. Therefore, this Court is not inclined to entertain the writ petition with the prayer as made. 7. The writ petition is accordingly dismissed. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Jul-2024 10:15:16 Page 9 of 9.