The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.38154 of 2021 Babula Kumar Barik State of Odisha & others -versus- …. Mr. R.K. Bisoi, Advocate Petitioner …. Opposite Parties Mr. T. Pattnaik, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 16.08.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the
Legal Reasoning
pleadings of the parties as well as the documents annexed thereto. 3. The Petitioner has approached this Court by filing the present writ application with a prayer to quash the selection committee recommendation dated 27.02.2020 under Annexure-5 and order dated 08.11.2021 issued by the Opposite Party No.2 under Annexure-11 and further for a direction to the Opposite Party No.3 to constitute a Review Selection Committee to select the Petitioner basing upon the medical board report dated 04.08.2020 under Annexure-7 to the writ application and send the petitioner for necessary training for Livestock Inspector along with the other eligible candidates as per letter dated 22.10.2021 of the Opp. Party No.2 within a stipulated period of time. 4. The factual background of the present case in the brief is that the Petitioner who is having M.A. qualification was selected by the // 2 // selection committee and appointed as Chowkidar on 19.11.1997 under the Chief District Veterinary Officer-Opposite Party No.3. While he was continuing as such he was re-appointed as attendant in the year 2001. Thereafter, he was transferred to different places and the Petitioner is having a unblemished service in the record. In the meantime, Odisha Veterinary Technical Service Group-C (Recruitment & Condition of Service) Amendment Rule, 2012 came into force on 3rd August, 2012. In view of said rules, the 10% of Group-C posts shall be filled up from among the Class-IV employees having matriculate qualification and sound health, good in physic with height not less than 5’2” and must be free from organic defect and mental infirmity, can be considered for promotion to the post of Live Stock Inspector. 5.
Legal Reasoning
Learned counsel for the Petitioner submitted before this Court that a common gradation list of employees was prepared wherein the name of the Petitioner has been indicated at Serial No.1 where as the name of Opposite Party No.4 has been reflected at Serial No.2 of Annexure-3. Accordingly, names of 10 candidates were sent to the selection committee to consider their cases for promotion to the post of Live Stock Inspector (Regular) by way of promotion in view of the provisions contained in the amended rules as stated hereinabove. Further, drawing attention of this Court to the service book of the Petitioner under Annexure-4 to the writ application, learned counsel for the Petitioner emphatically submitted before this Court that in the service book height of the Petitioner has been recorded as 5’2” and the same stands as amended as of now. The District Selection Committee in its meeting held on 27.02.2020 took up the case of the Petitioner along with the others whose names were sent vide letter dated 17.02.2020 under Annexure-3 for considering their promotion to the post of Live Stock Inspector. The proceedings of the meeting // 3 // under Annexure-5 reveals that some of the names were considered along with the name of the Petitioner, so far the present petitioner is concerned, which has been stated in the proceeding of the meeting that since he does not fulfill the eligibility criteria as his height measurement is 155 Cm (5’1”) against the minimum requirement of 5’2”. Accordingly, the case of the Petitioner was not considered, the committee, however recommended the person at serial No.2, namely, Susant Kumar Sahoo, the private-Opposite Party No.4 to the writ application. 6. At the time of the admission of the present writ application, this Court issued notice to the Opposite Parties including the private- Opposite Party No.4. Notice was sent to the private-Opposite Party No.4 by speed post with A.D., although the notice was served and the A.D. has been returned as it appears from the office note, none appeared on behalf of the Opposite Party No.4. Thus, this Court has inclined in the proceeding in the matter by accepting the fact that notice was served at Opposite Party No.4 and thereafter he has prepared not to participate in the proceeding. Hence, such service is valid service in the eye of law. 7. Being aggrieved by the rejection of his candidature for promotion to the Live Stock Inspector, the petitioner approached the Director of Animal Husbandry and Veterinary Services, Odisha- Opposite Party No.2 by filing a grievance petition. The Opposite Party No.2 has forwarded the same to the Chief District Veterinary Officer, Nayagarh-Opposite Party No.3 on 04.03.2020 under Annexure-6 with a observation to obtain a medical report from the Chief District Medical Officer, Nayagarh and to furnish the same before the Director for further placement of Petitioner’s case in the next Promotion Adalat. Pursuant to the letter dated 04.03.2020 under // 4 // Annexure-6, the Petitioner in fact appeared before the Medical Board presided by the Chief District Medical Officer, Nayagarh. The medical board in its report dated 04.08.2020 under Annexure-7 to the writ application has categorically stated that the height of the petitioner was measured and it was found to be 157.5 Cm. Learned counsel for the petitioner submitted that 157.5 Cm is equivalent to 5’2”. Therefore, there is no doubt that the Petitioner was complying for the eligibility criteria as has been laid down in the amended rules under Annexure-1. After obtaining the medical examination certificate from the Medical Board, the Chief District Veterinary Officer, Nayagarh returned the matter to the office of the Director, Animal Husbandry and Veterinary Services, Odisha, however no action was taken. As a result of which the Petitioner was compelled to approach the office of the Director by filing an appeal dated 25.10.2021 under Annexure-9 to the writ application. In the meanwhile, some of the selected persons were sent to the Live Stock Inspector Training. 8. While the matter stood thus, finally, vide letter No.15035 dated 08.11.2021 under Annexure-11 to the writ application, the Director,
Decision
Animal Husbandry and Veterinary Services, Odisha disposed of the grievance petition of the Petitioner indicating therein that in view of the District Medical Board Report dated 04.08.2020 the representation of the Petitioner stands disposed of. Further, it has been indicated that the grievance petition dated 25.10.2021 regarding promotion to the post of Live Stock Inspector has no merit for consideration. Since the same has already been rejected by the Collector & District Magistrate, Nayagarh. Accordingly, the Petitioner has approached this Court by filing the present writ application. // 5 // 9. Learned Additional Standing Counsel for the State-Opposite Party Nos.1 to 3, on the other hand submitted that the State-Opposite Party Nos.1 to 3 have filed counter affidavit. The counter affidavit it has been stated that the Committee which was constituted to consider the promotion of the Petitioner and similarly placed other persons in view of the rules under Annexure-1, after due examination found that the height of the Petitioner is 155 Cm which is less than the height required under the amended rules i.e. 5'2”. Therefore, the committee had no other option but to reject the candidature of the Petitioner. He further contended that since the Opposite Party No.4 was next in the line. He has been selected and accordingly sent for Live Stock Inspector Training. Learned Additional Standing Counsel further referring to para-14 of the counter affidavit specifically submitted before this Court that the Opposite Party No.3 i.e. Chief District Veterinary Officer, Nayagarh submitted the Medical Examination Certificate of the Petitioner to the Opposite Party No.2 i.e. Director, Animal Husbandry & Veterinary Services, Odisha vide letter dated 06.08.2020. Since the Medical Board has given report of height as 157.5 Cm and not concluded the height of the Petitioner as 5’2”, the Opposite Parties have not considered the case of the Petitioner. In the counter affidavit the Opposite Parties have also admitted the fact that the service book of the Petitioner his height has been mentioned as 5’2”. It has also been stated that the Selection Committee on 27.02.2020 found that the height of the Petitioner is 5’1” (155 Cm). Further, it has been stated that the physical test of the Petitioner was conducted by the District Sports Officer, Nayagarh and Reserve Inspector, Police Training School, Nayagarh. Therefore, the Selection Committee has come to a conclusion that the height of the Petitioner is 5’1” and accordingly his application was rejected as the // 6 // Petitioner has failed to meet the height requirement of 5’2”. In view of the aforesaid submission, learned Additional Standing Counsel submitted before this Court that the present writ application is devoid of merit and the same should be dismissed. 10. Having heard the learned counsels for the Parties and on a careful consideration of the pleadings of the respective parties and the submission made by the learned counsels appearing for the respective parties, this Court is of the considered view that the only question that is required to be adjudicated in the present writ application is with regard to the rejection of Petitioner’s candidature on the ground that the Petitioner has failed to meet the height criteria in the amended rules. It appears that the Selection Committee has taken into consideration the height of the Petitioner as 5’1” (155 Cm). On perusal of record it appears that such measurement of height is placed on the test conducted by the District Sports Officer, Nayagarh and Reserve Inspector, Police Training School, Nayagarh. However, there is nothing on record that the Selection Committee had taken note of the measurement of height which has been reflected in the service book or the report of the medical board before rejecting his candidature. Although, on the grievance petition submitted by the Petitioner, the Petitioner was sent to the Medical Board for measurement of his height and the Medical Board presided over by the Chief District Medical Officer, Nayagarh has submitted a report dated 04.08.2020 under Annexure-7 to the writ application categorically stating therein that the height of the Petitioner was measured and found to be 157.5 cm. This obviously means that the height of the Petitioner was 5’2”. 11. This Court upon further examination of the impugned rejection letter under Annexure-11 to the writ application observes that while // 7 // rejecting the application of the petitioner the Director has not taken note of the height reported by the District Medical Board. It appears that the grievance petition of the Petitioner has been rejected mechanically by the Director without application of mind. Moreover, in the counter affidavit the justification has been given to the effect that since the Medical Board has not reflected the height as 5’2” and it had only mentioned the height to be 157.5 cm, the authorities have not considered the case of the Petitioner. Such stand taken by the Opposite Parties, in my considered view, is absolutely vague and unsustainable in law. On perusal of the recommendation letter for consideration for promotion to the post of Live Stock Inspector it appears that the Petitioner name was at Serial No.1 under Annexure- 3. Therefore, his case should have been considered along with the other similarly situated candidates. The Selection Committee has rejected the candidature of the Petitioner on an erroneous assumption that the height of the Petitioner is less than 5’2”. Such finding of the Selection Committee is not based on any material on record rather the report submitted by the Medical Board is contrary to the finding of the Selection Committee. Therefore, this Court has no hesitation to accept the Medical Report submitted by the Medical Board under Annexure-7 to the writ application and accordingly the height of the Petitioner be treated as 157.5 cm which is 5’2” otherwise also in the service book the height of the Petitioner remains recorded and undisputed at 5’2”. In view of the aforesaid analysis, this Court is of the considered view that the rejection of the Petitioner’s candidature is highly illegal and arbitrary, accordingly the proceeding of selection committee meeting held on 27.02.2020. So far it relates to the present Petitioner is hereby quashed and the letter dated 08.11.2021 under Annexure-11 is also hereby quashed. Further, the matter is remanded // 8 // back to the Chief District Veterinary Officer, Nayagarh- Opposite Party No.3 to consider the matter afresh by taking the height of the Petitioner as 5’2”. Further, in the event, the Petitioner is selected, he shall be sent for Live Stock Inspector training forthwith. The entire process be carried out within a period of two months from the date of communication of the certified copy of this order. 12. With application stands disposed of. the aforesaid observations/ directions, the writ Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2023 11:44:48