The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC ) No.2634 of 2017 Ibtisham Sawaiyan ..... Petitioner Mr.G.R.Sethi, Adv State of Odisha & Others ..... -versus- Opposite Parties Mr. B. Mohanty, Addl. Govt. Advocate Mr. A. Behera, Adv. (for OPSC) CORAM: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No.5 ORDER 13.08.2024 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer. 1. To direct the respondents to consider the case of applicant for appointment as Forest Ranger. 2. To direct the respondents to allow the applicant to participate in the viva voce test for the post of Forest ranger. 3. And pass such other order/orders as may be deemed fit and proper for the interest of justice. 4.
Legal Reasoning
Learned counsel for the Petitioner contended that Petitioner in terms of the advertisement issued by the Orissa Public Service Commission(in short,“the Commission”) vide Advertisement No.21 of 2015-2016 under Annexure-2, made the application as against the . post of Forest Ranger, Group-B of the Odisha Forest Service. 4.1. It is contended that the educational qualification for the aforesaid post is more fully described in para-4 of the Advertisement. Even though Petitioner does not have the required qualification of Bachelor Degree with Mathematics as one of the subject, but placing reliance on the certificates available under Annexure-1 series, learned counsel for the Petitioner contended that, since Petitioner has passed B.Com with Hons. and Business Mathematics is one of the subject in the said Course, Petitioner not only made her application, but also the same was entertained. But subsequently, when Petitioner was not allowed to take the viva-voce test after qualifying the Written Test, the present Writ Petition was filed inter alia with the prayer as indicated here-in- above. 4.2. It is also contended that the Tribunal while issuing notice of the matter vide order dt.20.09.2017 directed the Opp. Party-Commission to allow the Petitioner to sit in the viva-voce test for the post in question, but with the condition that her result shall not be published without leave of the Court. 4.3. Basing on the stand taken in the counter affidavit, learned counsel for the Petitioner contended that Petitioner in terms of the said order though was allowed to take the viva-voce test on the date fixed, but her result has not been published. It is accordingly contended that appropriate direction be issued to the Commission to publish her result and to provide appointment to the Petitioner if she has qualified the . viva-voce and has secured the cut-off mark if any fixed by the Commissiion. 5. Learned counsel appearing for the Commission when initially made his submission basing on the stand taken in the counter affidavit, this Court passed the following order on 01.07.2024. is taken up through “1.This matter Hybrid Arrangement. 2. Heard learned counsel for the parties. 3. Let a copy of the brief in entire be served on Mr. A. Behera, learned counsel who is usually appearing for OPSC in the course of the day. He is directed to obtain instruction as to whether in terms of order dated 20.09.2017, so passed by the Tribunal, Petitioner was allowed to sit in the Viva-voce test and produce the result thereof. As requested, list this matter on 4. 10.07.2024. Office is directed to indicate the name of Mr. Arnab Behera in the case record as well as in the Cause List henceforth.” 5.1 Pursuant to the aforesaid order, an additional affidavit is filed on behalf of Opp. Party No.2 in Court today. The same be kept in record. 5.2. Placing reliance on the affidavit, learned counsel appearing for the Commission contended that after thorough search, the sealed cover of the Petitioner’s result could not be traced out and the Commission is ready to conduct a fresh viva-voce test for the Petitioner. But In course of hearing, learned counsel appearing for the Commission contended that since Petitioner does not have the requisite qualification to take the recruitment test in terms of Annexure-2, present Writ Petition with the prayer as indicated hereinabove is not entertainable. . 5.3. It is contended that Petitioner does not have the required qualification as prescribed under para-4 of the advertisement and the subject Business Mathematics which Petitioner had as one of the subject while appearing the three year Bachelor Degree of Commerce, is not the same as the subject Mathematics. It is accoridngly contended that Petitoner since does not have the requisite qualification as prescribed in Para-4 of the advertisement, she is not eligible for participation as against the post. Para-4 of the advertisement reads as follows:- “4. Educatiional Qualification: A candidate must have possessed Bachelor’s Degree from a recognized University or Institution in India with at least one of the following subjects namely Botany, Chemistry, Geology, Mathematics, Physics, Statistics, Veterinary Science and Animal Husbandry and Zoology or a Bachelor’s Degree in Agriculture, Forestry or in Engineering or an equivalent qualificiton.” In support of his submission, learned Counsel relied on a recent decision of the Hon’ble Apex Court in the case Shifana P.S Vs. The State of Kerala and Others, Civil Appeal NO(s). 4468 of 2013. Hon’ble Apex Court in para 13 to 16 of the said order has held as follows. 13. Indisputably, the qualifying criteria prescribed for the post advertised vide notification dated 30th April, 2008 was a degree in B.Sc(Chemistry). Admittedly, the appellant does not hold such a degree. It is the case of the appellant that B.Sc(Polymer Chemistry) degree acquired by her is required to be treated as equivalent to a degree in B.Sc(Chemistry). However, the said argument does not hold water and is misconceived. 14. This Court Ahmad Rather v. Sheikh Imtiyaz Ahmad and others2 held that judicial review can neither expand the ambit of the of Zahoor case the in . prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Therefore, the equivalence of a qualification is not a matter that can be determined in the exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. 15. In Unnikrishnan CV and others v. Union of India and others3, a three Judge Bench of this Court, while relying upon the earlier judgment in the case of Guru Nanak Dev University v. Sanjay Kumar Katwa and Anotherl4 held that equivalence is a technical academic matter, it cannot be implied or assumed. Any decision of the academic body of the University relating to equivalence should be by specific order or resolution, duly published. 16. The fervent plea advanced on behalf of the appellant that the University of Calicut had issued a certificate dated 10th October, 2011 verifying that B.Sc(Polymer Chemistry) course of the said University is recognised as equivalent to its B.Sc(Chemistry) course is also not tenable in light of the observations made by this Court in the case of Unnikrishnan CV (supra). In view of the settled principles of law flowing from the above precedents, we are of the firm view that the appellant herein was not qualified for the post advertised vide notification dated 30th April, 2008. 6. Having heard learned counsel for the parties and considering the submission made, this Court finds that Petitioner in terms of Annexure-2 made her application for the post of Forest Ranger.This Court after going through the qualification prescribed under para-4 of the advertisement finds that for making such application, a candidate must have passed Bachelor Degree with Mathematics as one of the subject Mathematics. This Court after going through the documents available at Annexure- 1 series finds that Petitoner has acquired Bachelor Degree in Commerce with Business Mathematics as one of the subject. . 6.1. Placing reliance on the decisions of the Hon’ble Apex Court , as cited (supra), it is the view of this Court that candidature of the Petiotnier was not at all entertainable as Petitioner does not have the prescribed qualification of Bachelors’ Degree with Mathematics as one of the subject. Accordingly, the Writ Petition stands dismissed. 6.2 However, before parting with the present case, this Court taking into account the stand taken in the additional affidavit filed in Court today by the Commission that the result of the Petitoner in the sealed cover is not available, is of the view that OPSC being a primary recruiting agency of the State, it is not conducting the selection in a free and fair manner. In most of the cases, this Court is finding that the recruitment test is being conducted by the Commission without following the stipulations contained in the advertisement and in most of the cases after conducting the recruitment test, the Commission is unable to produce various documents ancillary to the selection process as and when called for by this Court. The Commission is taking evasive plea before this Court for not being able to produce the documents. Therefore, this Court while expressing dissatisfaction on such action of the Commission, requests the Chairman to cause an enquiry and take necessary remedial steps in preventing such things being repeated in future. Registry is directed to communicate a copy of this order to the Chairman, Odisha Public Service Commission for doing the needful. . Judge sangita ( BIRAJA PRASANNA SATAPATHY) Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticatiion of order Location: high court of orissa, cuttack Date: 20-Aug-2024 16:21:34 .