The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.1430 of 2019 Dr. Debi Prasad Kund …. Petitioner Mr. B.B. Mohanty, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA Mr. A. Behera, Advocate (appearing for OPSC) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 04.01.2024 Order No 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.B. Mohanty, learned counsel appearing for the Petitioner and Mr. A. Behera, learned counsel appearing for the OPSC. 3. Memo containing mark secured by the present Petitioner in the written and viva-voce examination pursuant to the selection process undertaken by OPSC vide advertisement under Annexure-4, filed in Court be kept in record. 4. The present writ petition has been filed inter alia with the following prayer:- “In view of the facts stated above, the applicants pray that this Hon’ble Tribunal may graciously be pleased to admit the original application, call for the records and after hearing the parties be pleased to quash the notice no. // 2 // 6829 dated 12.09.2018 under Annexure-10 and the consequential order dated 26.10.2018 under Annexure 14 and further direction be made to calculate the special additional marks secured by the applicant by taking the total marks of the examination in terms of Clause 8(b) of Orissa Contractual Service (Contractual Appointment) Rule, 2013 and Clause 3(1) of the Advertisement No. 8 of 2017-18 and accordingly appointment order be issued in favour of the applicant against the post of Veterinary Assistant Surgeon/Additional Veterinary Assistant Surgeon Class-II (Group-B) within a reasonable time to be fixed by this Hon’ble Tribunal. And may pass any other order/orders as this Hon’ble Tribunal may deem fit and proper in the eye of law.” 5. It is contended that pursuant to the selection process initiated under Annexure-4, Petitioner made his application as an inservice UR candidate, he having continued as a contractual VAS pursuant to the order of appointment issued on 17.06.2011 under Annexure- 3. It is contended that in terms of the provisions contained in Para 3(c) of the advertisement, Petitioner was entitled to get 1% extra mark on the total mark of the examination for each completed years of continuous service as a contractual VAS, subject to maximum 15%, which shall be added to the mark secured by him for deciding his merit position as per G.A. Department notification No.1147 dtd.17.01.2014. In the advertisement issued under Annexure-4, the total mark of the written exam was fixed at 800 i.e. 400 mark each in Paper I & Paper II. 5.1. Learned counsel for the Petitioner contended that by the time he took part in the selection process pursuant to Annexure-4, Petitioner had already completed 6 years of continuous service as a contractual VAS and in view of the provisions contained in Para Page 2 of 5 // 3 // 3(c) of the advertisement vis-a-vis Rule 8(b) of the Odisha Group B Posts (Contractual Appointment) Rules, 2013 (in short Rules), Petitioner was eligible and entitled to get extra 48 marks i.e. 6% of the total mark of 800 in addition to the mark secured by him in the written examination and viva voce. It is also contended that Petitioner in the written examination has secured 144 marks in Paper I and 196 marks in Paper II. Similarly, Petitioner has secured 81 mark in the viva voce. Since Petitioner was only allowed 25.860 mark for his continuance as a contractual VAS in place of 48 marks, to which he was otherwise entitled to in terms of the stipulation contained in Para 3(c) of the advertisement, Petitioner was deprived from the purview of selection. 5.2. It is also contended that in the selection so conducted by the OPSC, the cut-off mark for UR candidate was fixed at 471 as reflected from Annexure-A-11 series i.e. the document downloaded from the Commission’s website. It is contended that Petitioner since admittedly has secured 350 marks in the written examination and 81 marks in the viva voce, Petitioner if would have been allowed extra 48 marks towards his continuance as a contractual VAS in terms of Para 3(c) of the advertisement, Petitioner’s total mark would have come to 479. Taking into account the cut-off mark fixed for UR (M) at 471 as revealed from Annexure-11 series and Petitioner’s mark having come to 479, Petitioner could have been selected as against UR (Male) vacancy. 5.3. It is contended that because of the fault committed by the Commission in not awarding extra mark in terms of Para 3(c) of the advertisement r.w. Rule 8(b) of the 2013 Rules, Petitioner was not selected. It is accordingly contended that appropriate order be passed by directing the Commission to recommend the name of the Page 3 of 5 // 4 // Petitioner to Opp. Party No. 1 for his appointment as VAS. It is also contended that the Tribunal while issuing notice of the matter on 30.10.2018, passed an interim order by holding that any appointment pursuance to Annexure-10 will be subject to final result of the present matter and the same be mentioned in the order of appointment. 6. Mr. A. Behera, 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. Though Mr. Behera did not dispute the provisions contained under Rule 8(b) of the 2013 Rules and the provisions contained under Para 3(c) of the advertisement, but he contended that Petitioner since secured 350 mark in the written examination and 81 marks in the viva voce, he was allowed 6% extra mark on the total mark secured by him i.e. 431 marks. It is accordingly contended that since Petitioner in terms of the advertisement as well as the Rule was awarded 6% extra mark on the total mark secured by him in the examination, his total marks comes to 456.860, which is less than the cut-off mark so fixed for the UR (Male) candidate i.e. 471. It is accordingly contended that there is no illegality or irregularity with the process of selection so adopted by the Commission. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that in the advertisement issued under Annexure-4, Petitioner made his application as an in-service candidate. As found from Annexure-3, Petitioner was appointed as a contractual VAS vide order dtd.17.06.2011. As on the date of making the application, Petitioner had already completed 6 years of contractual service. Therefore, in view of the provisions contained under Para 3(c) of Page 4 of 5 // 5 // the advertisement vis-a-vis Rule 8(b) of the 2013 Rules, Petitioner was eligible and entitled to get 6% extra mark on the total mark of the examination i.e. 800. 7.1. It is also found from the record that in the previous selection process so conducted by the Commission pursuant to the advertisement N0o. 03/2013-14, such contractual VAS have been allowed 1% extra mark for each completed years of service as contractual VAS on the total mark i.e. 800 as found from Annexure-13. In view of such position, this Court while disposing the writ petition, directs the Commission to take the total mark of the Petitioner to be at 479. Since in the information downloaded from the Commission’s website the cut-off mark in UR (Male) category is fixed at 471, this Court directs the Commission to recommend the name of the Petitioner for his appointment as against the post of Veterinary Assistant Surgeon in terms of the advertisement issued under Anenxure-4 i.e. Advertisement No. 08/2017-18. Such an action be taken by the Commission within a period of four (4) weeks from the date of receipt of this order. On such recommendation made by the Commission, Opp. Party No. 1 shall take consequential step in providing appointment to the Petitioner within a further period of four (4) weeks from the date of receipt of such recommendation.
Decision
8. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Jan-2024 10:40:18 Sneha (Biraja Prasanna Satapathy) Judge Page 5 of 5