The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.4484 of 2011 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… Upendra Kumar Jena …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. J.K. Lenka, Advocate For Opp. Parties :M/s. R.N. Mishra, Additional Government Advocate (for Opp. Party Nos.1 to 3) Mr. H.N. Mohapatra, Advocate (for Opp. Party no.4) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 18.01.2023 and Date of Order: 31.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The Present Writ Petition has been filed by the Petitioner with a prayer to declare the appointment of Opp. Party No.4 as a 1 Junior Clerk vide Order dated 24.06.2011under Annexure-5 in the Revenue & Disaster Management Department pursuant to the selection undertaken by the Collector, Cuttack vide Annexure-1 as illegal and to set aside the same with a further prayer to direct the Opposite Parties to provide the Petitioner appointment as against the said post from the date Opp. Party No.4 was given such appointment. 2. The case of the Petitioner as depicted in the Writ Petition is that pursuant to the advertisement issued in the local newspaper on 05.03.2011 by Opp. Party No.2 under Annexure- 1, inviting applications for recruitment to the post of Junior Clerk in the Revenue Department in the district of Cuttack, the Petitioner as well as Opp. Party No.4 made their applications under PH quota. As against the 86 posts advertised to be filled up vide Annexure-1, 8 posts were reserved for Ex-servicemen, P.H and Sportsmen. After submission of the application, the petitioner was issued with the admit card to attend the written test on 24.05.2011 and the compute test on 19.06.2011. Pursuant to the selection undertaken by Opp. Party No.2, 416 candidates who were found eligible and qualified in the written test were called by the Selection Board, to appear the Computer / 2 / test on 19.06.2011. Since during holding of the computer test, the Petitioner was provided with a defective computer, the petitioner could not give all the answer and in spite of written complaint made before the Selection Board, no action was taken and thereby causing prejudice to the Petitioner. In spite of that the petitioner though secured in total 421 marks and the Opp. Party No.4 secured 420 marks, but the petitioner was not provided with appointment and Opp. Party No.4 having secured less mark was provided with such appointment vide order issued on 24.06.2011 under Annexure-5. 3.
Legal Reasoning
It is the contention of the learned counsel appearing for the Petitioner that since the petitioner after qualifying the written test and appearing the computer test secured 421 marks and the Opp. Party no.4 secured 420 marks, the petitioner should have been appointed as against P.H quota and without providing him appointment since Opp. Party No.4 was appointed vide Annexure-5, the Present Writ Petition was filed challenging the appointment of Opp. Party No.4. 4. On receipt of notice when a counter was filed indicating therein that even though the petitioner secured more marks in total than the Opp. Party No.4, but since the Petitioner did not qualify in the computer test and failed to secure the required percentage of mark, the petitioner was not selected. The Opp. / 3 / Party No.4, on the other hand since secured the qualifying mark in the Computer test, he was appointed and no illegality has been committed by the Selection Committee in providing appointment to the private Opp. Party No.4. It is also contended that since the selection in question was conducted in terms of the provision contained under the Orissa Ministerial Service (Method of Recruitment to the Post of Jr. Clerk in the District Offices) Rules, 1985, as provided under Rule 4 of the said Rules, the Board of Examiners constituted vide Office Order dated 12.05.2011 in its proceeding dated 24.06.2011 decided to keep 4 posts reserved for P.H. category, 3 posts for Ex-service men and 1 posts for Sports Person, out of the 8 posts reserved for all the three categories as per Annexure-1. It is also contended that as the tests prescribed is of qualifying in nature, in the proceeding dated 24.6.2011, it was decided by the Board of Examiners, that out of 50 marks prescribed for the computer test, in order to qualify, a candidate has to secure 30% marks i.e. 15 marks. 4.1. While on the one hand, the petitioner only secured 11 mark in the Computer test, the private Opp. Party No.4 secured 20 marks out of the total 50 marks. Since the petitioner did not qualify the computer test having failed to secure the required 30% marks and the Opp. Party No.4 qualified the said test, even though the petitioner secured ‘1’ mark more in total, but Opp. / 4 / Party No.4 having qualified the compute test and having secured the qualifying mark in both Paper-1 and Paper-2, he was selected and provided with the appointment vide order at Annexure-5. 4.2. The scheme of examination provided in terms of the amended Rules, 2009 to the Original Rules, 1985 also prescribes that the written test for the examination in question shall consists of paper 1 and paper 2 with 200 marks each and the computer skill test shall consists of 50 mark. It is also provided that those who qualify the written test shall be called for the practical skill test and the practical skill test shall be of qualifying in nature. In view of such provision contained under the amended Rules, the Board of Examiners in its proceeding dated 24.06.2011 fixed the qualifying mark in the computer test at 30% and those who qualify the computer test as well as the written test will be selected in accordance with merit. Accordingly, it is contended that since the petitioner failed to qualify the computer test, he was rightly not selected. Opp. Party No.4 though secured 1 mark less in total than the Petitioner, but he having qualified the computer test as well as the written test he was selected by the Selection Committee and provided with the appointment. 5. On receipt of the counter, a rejoinder affidavit was filed by the Petitioner indicating therein that even though Opp. Party / 5 / No.4 qualified the computer test by securing the 30% mark as prescribed, but in Part-I of Paper-1 i.e. language test consisting of English and Oriya, since the Opp. Party No.4 secured only ‘9’ marks out of 50 marks in Oriya, he should not have been selected, having failed to qualify the said Oriya paper. Learned counsel for the Petitioner also contended that since in the advertisement there is no qualifying mark prescribed to qualify the computer test, in view of the decision of the Hon’ble Apex Court rendered in the case of Himani Malhotra vs. High Court of Delhi, the Selection Committee is not entitled to prescribe any qualifying mark in the computer test after conduct of the written examination. It is contended that as per the decision in the case of Himani Malhotra, the view of the Hon’ble Apex Court is that prescribing minimum marks for viva-voce test is not permissible after conduct of the written test. Therefore, it is contended that not only the prescription of the minimum mark to qualify in the computer test is illegal but also the Selection of Opp. Party No.4 who has also not qualified by securing the required percentage of mark in the Oriya Paper. 6. To the aforesaid plea of the learned counsel for the Petitioner, learned Additional Government Advocate contended that since Part-I of Paper -1 i.e. language test consists of English and Oriya with 50 mark each, to qualify, the qualifying mark is / 6 / 30 out of 100 and no qualifying mark is required for a candidate to secure either in English or in Oriya separately. It is contended that the private opp. Party No.4 in paper 1 of Part-I since secured 38 marks, he was declared as qualifying in the said paper 1 of Part 1. 6.1. Learned Additional Government Advocate brought to the notice of this Court the mark list of candidates enclosed vide Annexure-4 series wherein the name of Opp. Party no.4 is reflected at Sl. No.146. Learned Additional Government Advocate accordingly contended that since the petitioner has failed to qualify the computer test which was prescribed in terms of the amended Rules, 2009, no illegality can found with the action of Opp. Party No.2 in selecting and appointing opp. Party no.4. 7. I have heard Mr. J. K. Lenka, learned counsel appearing for the Petitioner, Mr. R.N. Mishra, learned Additional Government Advocate appearing for Opp. Party Nos.1 to 3 and Mr H.N. Mohapatra, learned counsel appearing for Opp. Party No.4. 8. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the advertisement under Annexure-1 was issued for selection of Junior Clerk in the establishment of Opp. Party No.2. In Para 7 of the advertisement, the scheme and subject of the examination that was prescribed was in accordance with the provision / 7 / contained under the Appendix 2 of Rule 10 of the Amended 2009 Rules to the 1985 Rules. In Para 7, Practical skill tests was prescribed to be of qualifying nature. In view of such provision contained under Para 7 of the advertisement, the selection committee in its proceeding dated 24.06.2011 prescribed the minimum qualifying mark at 30% in the Computer skill test. While the petitioner secured only 11 marks out of 50, the opp. Party No.4 secured 20 marks in the computer skill test, out of 50 marks. Therefore, this Court finds that the opp. Party no.4 though has secured ‘1’ mark less in total, but he has qualified in all the papers including the computer skill test. The stand taken by the petitioner that the Opp. Party no.4 has failed to secure the qualifying mark in Oriya which comes under Part-I of Paper-I, the said plea is not acceptable, as part-I of Paper 1 consists of both English & Oriya with 50 mars each and as reflected in Annexure-4, the qualifying mark is taken out of the total 100 and not separately in English and Oriya. The stand taken by the Petitioner that the authorities are not competent to prescribe the qualifying mark in the computer test after conducting the written examination in terms of the decision of the Hon’ble Apex Court in the case of Himani Malhotra is also not acceptable as in the advertisement itself in Para 7, it has been clearly indicated that the practical skill test shall be of qualifying in nature and the / 8 / said qualifying mark at 30% was decided by the Selection Committee after conducting the computer test on 19.06.2011. The relevant recruitment rule also prescribes the Computer test to be of qualifying in nature. Therefore, this Court after going through the materials available on record, finds no illegality or irregularity with regard to the selection and appointment of Opp. Party no.4. Accordingly while confirming the same, this Court is
Decision
not inclined to allow the prayer as made in the writ petition. 9. The Writ Petition is accordingly dismissed. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st January, 2023/sangita / 9 /