The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) Nos.3249 & 3250 of 2015 In the matter of an application under Section 19 of the Administrative Tribunal Act, 1985. ……………… WPC(OAC) No.3249 of 2015 Devadatta Barik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioners : M/s.Sujata Jena, S.Mohanty, G.B.Jena, B.P. Chhulasingh & A.K.Das. For Opp. Parties : Addl. Standing Counsel Mr.A.P.Das. WPC(OAC) No.3250 of 2015 Prasanta Kumar Barik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioners : M/s.Sujata Jena, S.Mohanty, G.B.Jena, B.P. Chhulasingh & A.K.Das. For Opp. Parties :
Legal Reasoning
Addl. Standing Counsel Mr.A.P.Das. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:14.12.2022 and Date of Order: 03.01.2023 -------------------------------------------------------------------------------- // 2 // Biraja Prasanna Satapathy, J. 1. Since issue involved in both the cases is identical and the challenge made in the writ petitions are also similar, both the matters are heard analogously and disposed of vide the present common order.
Decision
Both the Writ Petitions have been filed inter alia for a direction on the Opposite Parties to consider the candidature of the Petitioners for the post of Pharmacist in the district of Cuttack as per the advertisement issued under Annexure-1. 2. The factual backdrop giving rise to filing of the present case is that even though both the Petitioners posses the qualification of Bachelor in Pharmacy, but in view of the stipulation contained in the advertisement issued on 22.07.2015 under Annexure-1 for recruitment to the post of Pharmacist, they were made ineligible to make their application on the ground that the prescribed qualification was Diploma in Pharmacy. The Petitioners challenging the same approached the Tribunal in O.A No.3249(C) of 2015 and 3250(C) of 2015. The Tribunal while issuing notice of the matter vide order dated 03.09.2015 passed the following order:- Page 2 of 11 // 3 // “Heard learned counsel for the applicant, Mrs. S. Mohanty and learned Addl. Standing Counsel, Mr. H.K.Panigrahi. Admit. Issue notice. Counter be filed within four weeks. Rejoinder, if any, be filed two weeks thereafter. List this case after six weeks. is concerned, the So far as prayer for respondents are directed to allow the applicant to participate in the selection process for the post of Pharmacists, but his result be kept in sealed cover. interim relief Send copies”. 2.1. In terms of the order passed by the Tribunal on 03.09.2015, though the Petitioners were allowed to participate in the selection process, but the results were not published and kept in sealed cover. 2.2. It is contended that since the Petitioners in both the cases possess the qualification of B. Pharma, which is a higher qualification than the prescribed qualification indicated in the advertisement under Annexure-1 i.e. D. Pharm, the action of the Opposite Party No.1 in debarring the Petitioners who possess higher qualification than that of the prescribed qualification is not legally sustainable. The Petitioners in support of their eligibility submitted that in respect of similar advertisement issued by AIIMS, Bhubaneswar on 28.02.2014 under Annexure-4-Series, the prescribed qualification was degree in Pharmacy from the recognized University. Similarly in respect of another advertisement issued by the Government of India, Ministry Page 3 of 11 // 4 // of Home Affairs under Annexure-4-Series, the prescribed qualification for the post of Pharmacist was degree or Diploma in Pharmacy from any recognized institutions of the Central or State Government. Not only that in respect of another advertisement issued by the NNBC Ltd., which is a Government of India Public Sector Enterprises for the post of Asst. Pharmacist Grade-3, the prescribed qualification was Diploma in Pharmacy or Degree in Pharmacy. Accordingly, it is contended that since the Petitioners possess higher qualification than that of the prescribed qualification indicated in Annexure-1, the Petitioners are eligible for their participation in the selection process and for consideration of their claim for appointment. 2.3. It is also contended that in view of the interim order passed by the Tribunal on 03.09.2015, the Petitioners were allowed to participate in the selection process, but the result of the Petitioners are not being published and kept in a sealed cover. Unless appropriate direction is issued to the Opposite Parties to publish the result, the Petitioners will be seriously prejudiced. Page 4 of 11 // 5 // 2.4. With regard to acceptance of their application on the ground of having higher qualification, learned counsel for the Petitioners relied on a decision of the Hon’ble Apex Court in the case of Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd., reported in AIR 2021 SC- 2221. 2.6. Hon’ble Apex Court in the said decision in Paragraphs-5 and 37 has held as follows:- “5. Ms. Kavita Wadia, appearing for the degree holder appellants, contended that the expression “minimum” was deliberately used without any bar under the rules and did not prevent appointment of degree holders to the post of JE (Elect.) in HPSEB, and that diploma was only a minimum requirement. This, she argued is established beyond doubt from Clause 11 of the Rules for appointment to higher promotional post of Assistant Engineers (Elect.) where under 5% quota is provided for those who possessing degree at the time of their appointment as JE (Elect.) and 5% separately for those who acquired degree during their service as JE (Elect.) after their confirmation. She relies on the decision of this court in Govt of A.P. vs P. Dalip Kumar which held that the expression ‘minimum’ entitles the employer to choose a person with higher qualification. A minimum acts as a cut-off filter for the same, and does not debar recruitment of higher qualified candidates. xxx xxx xxx” 37. The considerations which weighed with this court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This court’s conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior teacher. In a similar manner, for “Technician-III” or 17(2019) 8 SCC Page 5 of 11 // 6 // 416 18 SLP (C) 10533-37 of 2020 lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub-quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the rule makers not to exclude degree holders from consideration for the lower post of Junior Engineers”. 2.7. Accordingly, learned counsel for the Petitioners contended that since the Petitioners in both the cases possess higher qualification i.e. B. Pharma, as against the prescribed qualification of D. Pharma in the advertisement under Annexure-1, the candidature of the petitioners are required to be considered and accepted by the Opposite Parties with publication of their result. 3. Mr. A.P.Das, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit filed by the Opposite Party No.4. 3.1. It is contended that pursuant to the interim order passed by the Tribunal, though the Petitioners were allowed to participate in the selection process, but since they failed Page 6 of 11 // 7 // to secure the required cut-off marks and they also failed to produce D. Pharma pass certificate, the result of the Petitioners is not required to be published at all. 3.2. It is contended that since the Petitioners do not possess the required qualification of Diploma in Pharmacy and instead possess the qualification of Bachelor in Pharmacy, there is no occasion on the part of the authority to award mark, as has been extended in favour of the candidates having qualification of Diploma in Pharmacy. 3.3. It is also contended that the Petitioners if would have possessed Diploma in Pharmacy along with Bachelor in Pharmacy then their case could have been considered. It is also contended that even though the Petitioners were allowed to participate in the selection process, but since they have failed to secure the cut-off mark, no direction can be issued to consider their candidature by publishing the result. 4. I have heard Ms.S.Mohanty, learned counsel for the Petitioners and Mr.A.P.Das, learned Addl. Standing Counsel for the State-Opposite Parties. On their consent, these matters were taken up for final disposal at the stage of admission. Page 7 of 11 // 8 // 5. This Court taking into account the order passed by the Tribunal on 03.09.2015 and the stand taken in the counter affidavit passed the following order on 02.09.2022:- “Pursuant to the order passed by this Court, an additional affidavit has been filed on 26.8.2022. This Court after going through the same finds that no averment has been made as to whether the petitioner has qualified in the written test, which he has taken pursuant to the interim order passed by this Court. Mr. Y.S.P.Babu, learned A.G.A submitted that the result of the petitioner has been kept in a sealed cover. Accordingly, this Court directs Mr. Babu, learned AGA to produce the sealed cover where the result of the petitioner has been kept, on the next date. List this matter on 16th September, 2022”. 5.1. Subsequently, when the result sheet of the Petitioners kept in a sealed cover was produced before this Court, after perusal of the same, this Court passed the following order on 16.09.2022:- “Heard Ms. S.Mohanty, learned counsel appearing for the Petitioners, Mr. Panigrahi, learned Addl. Standing Counsel for the State and Mr. S.B. Jena, learned counsel for the Opposite Party Nos.4 to 9. Pursuant to the last order passed on 02.09.2022, Mr. Panigrahi, learned Addl. Standing Counsel for State produced the sealed cover including the result of the petitioners in Court today. This Court after going through the same finds that though names of the Petitioners in both the cases are indicated in the category of S.E.B.C but no mark as such has been awarded and indicated in the relevant table meant for S.E.B.C category. Since the Petitioners are permitted to appear the test by virtue of the interim order passed by this Court, Mr. Panigrahi, learned Addl. Standing Counsel for the State is directed to obtain instruction as to the mark has Page 8 of 11 // 9 // secured by both the Petitioners in the said test by the next date. The sealed cover be kept in record. List this matter on 28th of September, 2022. 5.2. Pursuant to the order passed by this Court on 16.09.2022, this Court was intimated by the learned Addl. Government Advocate that since the Petitioners in both the cases do not have the requisite qualification as prescribed in the advertisement, they are not eligible for their selection. Considering such submission of the learned Addl. Government Advocate, this Court passed the following order on 28.09.2022:- “Heard Ms. Mohanty, learned counsel for the petitioner and Mr. Y.S.P. Babu, learned AGA. Pursuant to the last order passed by this Court Mr. Babu, learned AGA provided instruction to this Court that the petitioner has not qualified the test taken by the opp. party, in terms of the order passed by the learned Tribunal on 3.9.2015, Ms. Mohanty, learned counsel for the petitioner submitted that no mark has been awarded with regard to the qualification possessed by the petitioner towards Bachelor in Pharmacy. Mr. Babu, learned A.G.A on the other hand, submitted that since only Diploma Holders their applications, no mark has been awarded to the petitioner for having the qualification of Bachelor in Pharmacy. Ms. Mohanty on the other hand relied on a decision of the Hon’ble Apex Court passed in the case of Puneet Sharma Vs. Himachal Pradesh State Electricity Board Limited, reported in AIR 2021 SCC 2221. In the said decision, Hon’ble Apex Court has held that persons with higher qualification can make their applications, even if the post advertised allows candidates with lesser qualification to make their application. in Pharmacy are eligible to make Page 9 of 11 // 10 // Considering the rival submissions made by the learned counsel for the parties and taking into account the facts that the petitioners have not been awarded any mark for their qualification of Bachelor in Pharmacy, Mr. Babu, learned A.G.A is directed to obtain instruction as to whether pursuant to the selection process initiated under Annexure-1, all the posts of Pharmacists have been filled up in the meantime or not. Such instruction shall be provided to this Court by the next date. List this matter on 28th October, 2022”. In terms of the order passed on 28.09.2022, no further instruction was provided to the Court. However, it is contended that since the Petitioners do not possess the required qualification of Diploma in Pharmacy, while calculating their marks, no mark has been awarded for their having the qualification of B. Pharma. 5.3. In view of the analyzing made hereinabove and taking into account the decision of the Hon’ble Apex Court in the case of Puneet Sharma as cited (supra), this Court is of the opinion that since the Petitioners posses higher qualification than the qualification prescribed in the advertisement under Annexure-1 for the post of Pharmacist, their candidature is required to be considered and accepted. Therefore, this Court while disposing the Writ Petition directs the Opposite Party No.4 to award the prescribed mark in favour of the Petitioners for their possessing qualification of B. Pharma as has been awarded Page 10 of 11 // 11 // in favour of the candidates with D. Pharma qualification. After award of such mark for their qualification in B. Pharma, if it is found that, the Petitioners have secured the cut-off mark for their selection, then necessary follow-up action will be taken by the Opposite Party No.4 by providing appointment to the Petitioners as against any available vacancies. This Court directs Opposite Party No.4 to complete the entire exercise within a period of two months from the date of receipt of this order. 27. With the aforesaid observations and directions, both the Writ Petitions are disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd of January, 2023/Subrat (Sr. Steno) Page 11 of 11