The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36100 of 2023 Biswajeet Pattanayak State of Odisha & Ors. -versus- …. Petitioner Mr. A.K.Biswal,Advocate …. Opposite Parties Mr. Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 07.11.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard Mr. B.Routray, learned Senior counsel appearing for the Petitioner along with Mr. S.D. Routray, learned counsel and Mr. Anjan Kumar Biswal, learned counsel appearing in W.P.(C) No.36100 of 2023 and learned Additional Standing counsel appearing for the Opposite
Decision
Party board above noted application. Perused the Writ Petition as well as the documents annexed thereto including the additional affidavit filed in Court today. 3. Both the writ application has been filed with an identical prayer. Accordingly the prayer in the aforesaid writ application that is W.P.(C) No.36009 of 2023 is quoted present below. “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to // 2 // i) ii) iii) Admit the writ application. Call for the record. Issue rule NISI calling upon the Opp.parties to show cause as to why the reject list dated 20.10.2023 under Annexure-6 so far as the petitioners are concerned shall not be quashed. iv) And if the Opp.Parties fails to show cause of show insufficient cause, issue a writ in the nature of certiorari or any other writ/ writs, direction/ directions by quashing the reject list dated 20.10.2023 under Annexure-9 so far as the petitioners are concerned. v) Issue a writ in the nature of mandamus or any other writ/writs direction/ directions directing the opposite parties to consider the case of the petitioners for appointment as Nursing Officer pursuant to the advertisement under Annexure-1 as per merit within a stipulated time to be fixed by this Hon’ble Court. vi) And/or pass any other order/orders, direction/directions as this Hon’ble Court deems fit and proper for the ends of justice.” 4. Mr. Routray learned counsel appearing for the petitioner submitted that the petitioners have completed GNM/ B.Sc in Nursing in between 2014-17 from an institution recognized by the Government. Thereafter they had applied for registration with the Nursing Council of Odisha, pursuant to which they were granted a valid registration certificate in the year 2017. Thereafter such registration certificate fell due for renewal. In the meantime the Government of Odisha issued an // 3 // advertisement dated 21.01.2023 under Annexure-1 to the writ application, inviting application from the eligible candidates for 7483 posts of Nursing Officer. Pursuant to the aforesaid advertisement the petitioner along with other eligible candidates participated in the recruitment posts by submitting their duly filled up application forms. On scrutiny of their application forms, they were found to be in order and accordingly the candidates were allowed to participate in the recruitment test conducted by the Odisha Staff Selection Commission. Finally the petitioners qualified in the present recruitment examination and received a notices from Opposite Party No.3 for verification of the petitioner’s original documents on 09.08.2023. As per the notice the petitioners appeared before the Opposite Party No.3 on 21.08.2023 for verification of their certificates with their original documents. In between 21.08.2023 -01.09.2023 their documents were verified by the concerned CDM & PHO of their respective districts. 5. On 20.10.2023 the commission published a list of qualified candidates, such list reveals the names of the present petitioners. On perusal of the list which has been appended to the writ application under Annexure 9 it seems that the candidature of the petitioners has been disqualified as they were not having valid registration certificate from the Nursing Council of Odisha as is required under Clause 3 (A) (v) of the advertisement, under Annexure-1 to the writ application. It was also contended before this Court that on 30.10.2023 another list was published under Annexure-7 containing the names of 3732 candidates who were provisionally selected for recruitment of Nursing Council. It was also contended by the counsel appearing for the petitioner that at the moment 3751 posts of Nursing Officer are still vacant. So far the present petitioner and similarly situated many other candidates are concerned, it is stated by learned Senior counsel and Mr. B. Routray learned counsel in the second writ application, that although // 4 // many posts of Nursing Officer are still vacant, the petitioner and other similarly situated candidates who were selected via the selection process have been disqualified illegally and arbitrarily on the ground that they do not have a valid registration certificate from the Nursing Council of Odisha as on the date of advertisement as required under the advertisement under Annexure-1. 6. Mr. Routray, learned Senior counsel appearing for the petitioner at this juncture, referring to the additional affidavit, submitted before this Court that on an earlier occasion the state Government has come up with a notification dated 18.12.2019 under Annexure-10 to the additional affidavit wherein it is stipulated under clause-7 of said notification that, candidates not having a valid registration shall be allowed appear in the examination provided they furnish an undertaking that, in the event they are selected for the post, they shall re-produce the valid registration issued by the Odisha Nursing Council within six months from the date of appointment. He further contended that the aforesaid relaxation was granted in terms of Rule 8(4) of Odisha Nursing service (Method Of Recruitment And Conditions Of Service) Rules, 2019. He also referred to the corrigendum dated 02.01.2020 under annexure-11 to the writ application. On perusal of the corrigendum, it appears that under point No.7 a similar relaxation has also been granted in the shape of seeking extension of joining time in the event the selected candidates does not have a valid registration certificate by the Odisha Nursing Council. So far the present petitioner is concerned it is stated by learned counsel for the petitioner that, the petitioners had the valid registration certificate. However, the same fell due of renewal after expiry of inspection while the same was process of renewal advertisement. Such registration certificates have been renewed before the last date of submission of the application form, i.e. 17.02.2023. It was also contended that the fact had also been reflected // 5 // in the application form submitted by the respective candidates along with a reference to the valid registration number. Additionally it was contended that the petitioner had the valid registration certificate however the same was required to be renewed. Furthermore it was contended that, once the same was renewed by a competent authority, the validity of the certificate continues without any break. Moreover it appears from the Rules of 2019 that the Government is vested with the power under rule 8(4) to grant relaxation in appropriate cases. Such powers , it seems, have also been used by the Government on earlier occasions. In such view of the matter learned Senior counsel appearing for the petitioner submitted that the matter is to be reconsidered by the competent authorities by keeping in view the aforesaid factual as well as legal position. Learned Addl. Standing Counsel on the other hand submitted that the advertisement under Annexure-1 clearly specified that earlier registration certificate is one of the mandatory requirements to be considered for the appointment to the post of Nursing Officer. He further contended that, during verification of certificates and original documents it was found that the petitioner were not having the valid registration certificate as required under Annexure-1, their candidature has been disqualified and they have not been appointed to the post of Nurisng Officer. In such view of the matter learned Addl. Standing counsel submitted that the opposite party has not committed any illegality at all in disqualifying the candidature of petitioner and other similar candidates who were not having a valid registration certificate from the Odisha Nursing Council and were unable to produce the same during verification of certificates and original documents, and as such it was contended that writ application is devoid of any merit and the same should be dismissed. 7. Having heard the learned counsel appearing for the petitioners and the learned Addl. Standing Counsel for the State-Opposite Parties, // 6 // and on a careful examination of the background facts, this court observes that the candidature of petitioners has been disqualified on the ground that the petitioners were not having a valid registration certificate by the Odisha Nurisng Council. On perusal of the record it appears that, the petitioners after competition of the course from recognized government institutions, had applied for registration with the Odisha Nurisng Council. Subsequently they have been granted a valid registration certificate by such counsel. Further, it appears that such registration certificate issued by the counsel is required to be renewed from time to time. So far the present petitioners are concerned, in their case, the renewal of their registration certificate fell due during the time when the advertisement was published under Annexure-1 to the writ application. However, it is not disputed that the registration certificate issued in favour of the petitioner by the Odisha Nursing Council was duly renewed, and that such renewal means revival of the original registration without any break, and the registration certificate originally issued by the authority continuous to remain valid. Therefore it cannot be said that the petitioner were not having a valid registration certificate. it also appears that the registration number assigned to the petitioners also remains the same even after the renewal of such registration certificates. Further, on perusal of the facts of the present case, this court is also of the observation that, merely because the registration certificate is required to be renewed after a certain interval, it cannot be presumed that the same can valid certificate is in process of renewal. Moreover it is settled law that when a certificate is renewed, the certificate continues to remain valid, from the date of its initial issue, until the same is lawfully cancelled or terminated. From the records of this case, if reveals what the opposite parties have not stated that the registration certificate has either been cancelled or terminated. Therefore, the conduct of the Opposite Parties in holding that the // 7 // petitioners were not having valid registration in terms by the advertisement is not correct and the same is too harsh. Moreover, this court also observed that the power under Rule 8(4) having been exercised by the government earlier as it appears from the additional affidavit, there is no bar in exercising such power of relaxation in genuine and appropriate cases. In view of the aforesaid analysis as well as keeping in view factual background of the present case this court deems it proper to dispose of the present writ application by remanding the matter to the Opposite Parties No. 1 & 3 to reconsider the whole issue again keeping in view aforesaid observations made by this court as well as the documents under Annexure-10 &11 to the Additional Affidavit filed by the petitioner. Let the petitioner approach the opposite party no. 1 & 3 along with certified copy of this order within a period of two weeks from today. In such event opposite party no. 1& 3 shall do well to consider the same as directed by this Court hereinabove and take a final decision within two weeks thereafter. The decision so taken be communicated to the petitioner within a week thereafter. Any appointment made in the meantime shall be subject to the decision to be taken by the Opposite Party 1 & 3 as directed hereinabove. 8. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Rubi Location: High Court of Orissa Date: 09-Nov-2023 12:33:19 ( A.K. Mohapatra ) Judge