Orissa High Court
Varsachala Chetan vs State Of Odisha & Another ..... Opp. ... on 18 November, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) No. 18119 of 2019
&
W.P.(C) No. 18127 of 2019
In the matters of applications under Articles 226 and
227 of the Constitution of India.
---------------
AFR In W.P.(C) No. 18119 of 2019 Varsachala Chetan ..... Petitioner
-Versus-
State of Odisha & another ..... Opp. Parties
For Petitioner : M/s. Ramakanta Sahoo,
S. Saurav, Rajjeet Roy
and S.K. Singh Advocates
For Opp. Parties : Mr. J. P. Patnaik
Government Advocate
[O.P.1]
Mr. S.B. Jena and
C.K. Sahoo, Advocates
[O.P.2]
In W.P.(C) No. 18127 of 2019
Mamali Madhusmita Patra and others
..... Petitioners
-Versus-
State of Odisha & another ..... Opp. Parties
// 2 //
For Petitioners : M/s. Debaranayan Patnaik,
B. Baisakh, Advocates,
[Petitioners 1, 2, 3 and 6]
M/s Ramakanta Sahoo,
S. Saurav, Rajjeet Roy
and S.K. Singh, Advocates
[Petitioners 4 & 5]
For Opp. Parties : Mr. J. P. Patnaik
Government Advocate [O.P.1]
Mr. P.K. Mohanty, Senior
Advocate along with
M/s. P. Mohanty, P.K. Nayak,
P.K. Pasayat, Smt J. Mohanty
and S.N. Dash, Advocates.
[O.P.2]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of Hearing: 09.11.2021: Date of Judgment: 18.11.2021 DR. B.R. SARANGI, J. The petitioner in W.P.(C) No.18119 of 2019 seeks the following relief:-
"It is, therefore, humbly prayed that your Lordships may be pleased to issue Rule NISI calling upon the O.Ps. to show cause why the impugned order dt.12.9.2019 under Anx.8 shall not be quashed or set aside and if no show cause is filed or insufficient cause is shown, then the impugned order dt.12.9.2019 under Anx.8 be quashed and direction be issued to the Odisha Public Service Commission O.P. No.2 to send the select list incorporating the name of the petitioner to the Govt (O.P.1) for consideration of appointment in // 3 // the post of Dental Surgeon, Group-A (Jr.) of Odisha Medical Service (Dental) cadre. And pass any other order/orders as your Lordships may deem fit and proper in the interest of justice, equity and good conscience."
Similarly, the petitioners in W.P.(C) No. 18127 of 2019 seek the following relief:-
"It is, therefore, humbly prayed that your Lordships may be pleased to issue Rule NISI calling upon the O.Ps. to show cause why the impugned order dt.12.9.2019 under Anx.8 shall not be quashed or set aside and if no show cause is filed or insufficient cause is shown, then the impugned order dt.12.9.2019 under Anx.8 be quashed and direction be issued to the Odisha Public Service Commission (O.P. No.2) to send the select list incorporating the names of the petitioners 1 to 6 to the Government (O.P. No.1) for consideration of appointment of the petitioners in the post of Dental Surgeon, Group-A (Jr.) of Odisha Medical Service (Dental) cadre. And pass any other order/orders as your Lordships may deem fit and proper in the ends of justice, equity & good conscience."
In both the writ petitions, since the petitioners have claimed the similar relief, the same were heard together and are disposed of by this common judgment.
2. For a just and proper adjudication of the case, the factual matrix of W.P.(C) No. 18119 of 2019 is taken into consideration.
// 4 // 2.1 On going through the same, it reveals that the petitioner, having passed the All India Senior School Certificate Examination, 2013 (+2 Science) from Central Board of Secondary Education, Delhi and the Bachelors Degree in Dental Surgery (B.D.S) Examination in March, 2018 from Hi-Tech Dental College & Hospital, Bhubaneswar, under Utkal University, registered himself as a Dentist and the Registration Certificate as provided under Section 34 of the Dentists Act, 1948 was issued in his favour by the Odisha Dental Council on 12.07.2019.
2.2 The Odisha Public Service Commission, vide Advertisement No. 06 of 2018/19 invited applications from the prospective candidates through online in the proforma application to be made available in the website for recruitment to the post of Dental Surgeon in Group- 'A' (Jr) of Odisha Medical Services (Dental) Cadre for Scheduled Caste and Scheduled Tribe candidates (Special Recruitment Drive) under Health & Family Welfare Department in the scale of pay of Rs.15,600/- -
// 5 // Rs.39,100/- having Grade Pay of Rs.5400/- with usual dearness allowance & other allowances, as may be sanctioned by the Government of Odisha from time to time. The vacancy position for Scheduled Caste was 22 (07-women) and for Scheduled Tribe was 39 (13-women). The total vacancies of SC & ST category to be filled up by the Health & Family Welfare Department in the post of Dental Surgeon in Group-'A' (Jr) of Odisha Medical Services (Dental) Cadre was 61 (21-women). 2.3 As per the said advertisement, educational qualification has been prescribed that the candidate must have possessed a Bachelors Degree in Dental Surgery (BDS) or equivalent Degree from a Medical College or Medical Institution recognized by the Dental Council of India and must have possessed a registration certificate under the Dentists Act, 1948 along with other required qualification prescribed in the advertisement. The age of a candidate must have been between 21 years and 32 years as on 1st January, 2018, i.e. he must not have been born earlier than 2nd January, 1986 and not // 6 // later than 1st January, 1997. Age relaxation, as per Government rules, was also prescribed. The advertisement also contained other eligibility conditions of a candidate for the post of Dental Surgeon in Group- 'A' (Jr) of Odisha Medical Service (Dental) Cadre. The last date for availability of online application was fixed to 11.10.2018. Pursuant to the said advertisement, the petitioner, having the requisite qualification and fulfilling the eligibility conditions, applied for the post of Dental Surgeon in the prescribed proforma along with the required documents before the last date of submission of application.
2.4 The Orissa Public Service Commission, vide notice dated 26.04.2019, allowed the candidature of the petitioner and admitted him for the written examination for the post of Dental Surgeon in Group-'A' (Jr) of Odisha Medical Service (Dental) Cadre for SC & ST candidates scheduled to be held on 19.05.2019. Accordingly admit card was issued in favour of the petitioner indicating his roll number to be 100047 for // 7 // appearing in the written examination scheduled to be held on 19.05.2019. The petitioner appeared in the written examination and came out successful. After the written examination was over, 29 selected candidates, including the petitioner, were directed vide OPSC notification dated 11.07.2019 for attending the physical verification of original certificates/ documents in respect of the educational qualification and eligibility on 25.07.2019 and 26.07.2019 in the office of the Odisha Public Service Commission. The petitioner appeared before the Orissa Public Service Commission, along with all the original documents which were verified. On 12.09.2019, a notice was issued by the Orissa Public Service Commission informing that the candidature of the petitioner, as well as some others, had been rejected by the Commission as they were not eligible, as per the norms laid down in the advertisement and they were not fulfilling the requirement of the advertisement for the selection to the post of Dental Surgeon. In the said notice against Sl. No.1, 13 roll numbers had been // 8 // indicated, including the roll number of the petitioner, i.e. 100047, and as regards the ground of rejection, it was indicated to have "not completed Housemanship by 11.10.2018, the closing date for submission of online application." Similarly, the candidature of the petitioners of the connected writ petition, i.e. W.P.(C) No. 18127 of 2019 had also been rejected on the self same ground.
3. Mr. Rajjeet Roy, learned counsel for the petitioner in W.P.(C) No. 18119 of 2019 contended that on the basis of the application submitted by the petitioner, along with the required documents, if the petitioner had been called upon to appear in the written examination and he having qualified in the said examination, called upon to produce the original documents for verification, rejection of his candidature on 12.09.2019 alleging that he was not eligible as per the norms of the advertisement, is absolutely arbitrary unreasonable and violative of the principle of natural justice and also hit by the principle of estoppel. As regards the ground for rejection that the petitioner had not completed // 9 // Housemanship by 11.10.2018, i.e. the closing date for submission of online application, it is further contended that by that time the petitioner had already acquired the qualification and was undergoing Housemanship and had completed the said course between 06.06.2018 and 05.06.2019. The petitioner's application having found in order, he was allowed to participate in the process of selection by appearing in the written examination, and he having been qualified, subsequently he could not have been denied the appointment on the plea that he had not completed the Housemanship by 11.10.2019, i.e. the last date of submission of application. Fact remains, by the time the documents were placed for verification, the petitioner had already acquired the qualification having completed the Housemanship. Therefore, he could not have been debarred from selection on the flimsy ground. Thus, the petitioner seeks for quashing of the said notification dated 12.09.2019 vide Annexure-8.
// 10 // 3.1 It is further contended that if the candidature of other candidates had been rejected for some reason or other before the written examination, the application of the petitioner should have been rejected at the threshold without calling upon him to appear in the written examination. The petitioner, having appeared in the written examination and qualified in the same, subsequently at the stage of document verification, his candidature should not have been rejected on the ground that he had not completed Housemanship by 11.10.2018, i.e. the closing date for submission of online application.
3.2 It is further contended that as per NOTE-2 of Clause-10 of the advertisement, the Degree certificate, caste certificate, Odia pass certificate, discharge certificate, Ex-Servicemen and disability certificate of PWD candidates (indicting % of permanent disability), which must have been issued by the competent authority within the last date fixed for receipt of online applications were to be produced for verification as and // 11 // when asked for. But there was no mention about completion of Housemanship or Medical Registration Certificate under the Dentists Act, 1948. Though Clause-10 prescribes the certificates/documents to be produced for verification as and when asked for and when the documents were asked for verification, by that time, the petitioner had already acquired the Compulsory Housemanship Completion Certificate and, thereby, his application should not have been rejected on the ground that the petitioner had not completed Housemanship by 11.10.2018, i.e. the closing date for submission of online application. Such action of the authorities is in violation of the conditions stipulated in the advertisement itself and, therefore, the same needs interference by this Court.
3.3 To substantiate his argument, learned counsel for the petitioner relied upon the decision of the apex Court in Ashok Kumar Sharma and others Vs. Chander Shekhar and another, (1997) 4 SCC 18; The State of Tamil Nadu & Ors Vs. G. Hemalathaa // 12 // & Anr, Civil Appeal No. 6669 of 2019 (arising out of SLP (C) No. 14093 of 2019) disposed of on 28.08.2019; Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, AIR 2016 SC 1098; and Mahendra Singh Gill Vs. Chief Election Commissioner, New Delhi, AIR 1978 SC 851.
4. Mr. J. P. Patnaik, learned Government Advocate contended that since this matter is relating to Orissa Public Service Commission, the State has nothing to say and, as such, no counter has also been filed by the State.
5. Mr. S.B. Jena, learned counsel appearing for the Orissa Public Service Commission contended that in sub-clause (iv) of Clause-9 of the advertisement, it has been stipulated that admission to examination will be purely provisional and if on verification at any stage before or after the examination, it is found that a candidate does not fulfill any of the eligibility conditions, his/her candidature will be liable to rejection, and // 13 // decision of the Commission in regard to eligibility or otherwise of candidate shall be final. 5.1 Reliance has also been placed on sub-clause
(xiii) of Clasue-9 of the advertisement, which reiterates the same condition as has been stipulated in sub-clause
(iv) of Clasue-9. According to him, since the petitioner had acquired the Housemanship qualification, after the last date of submission of application form, on verification of documents he was found ineligible. Therefore, opposite party no.2 has rejected his candidature and, as such, no illegality or irregularity has been committed by the authority in passing the order impugned vide Annexure-8. Therefore, no interference of this Court is required. It was further contended that it is a selection pursuant to the advertisement issued in the year 2018-19 and the process of selection has already been concluded. Thereby, by efflux of time the writ application has become infructuous and the same should be dismissed.
// 14 //
6. Mr. Debanarayan Patnaik, learned counsel appearing for the petitioners in W.P.(C) No. 18127 of 2019 argued with the same tone with that of Mr. Rajjeet Roy, learned counsel for the petitioner in W.P.(C) No. 18119 of 2019.
7. This Court heard Mr. Rajjeet Roy, learned counsel for the petitioner, Mr. J.P. Patnaik, learned Government Advocate for opposite party no.1 and Mr. S.B. Jena, learned counsel for opposite party no.2-the Orissa Public Service Commission, in W.P.(C) No. 18119 of 2019 by hybrid mode. This Court also heard Mr. Debanarayan Patnaik, learned counsel for the petitioners, Mr. J.P. Patnaik, learned Government Advocate for opposite party no.1 and Mr. P.K. Mohanty, learned Senior Advocate appearing along with Mr. Pranay Mohanty, learned counsel for opposite party no.2-the Orissa Public Service Commission in W.P.(C) No. 18127 of 2019 by hybrid mode. Perused the record. Pleadings having been exchanged between the parties // 15 // and with their consent, the writ petition is being disposed of finally at the stage of admission.
8. The Orissa Public Service Commission issued the advertisement bearing No. 06 of 2018/19 for special recruitment drive to the post of Dental Surgeon in Group-'A' (Jr) of Odisha Medical Services (Dental) Cadre for SC/ST candidates under Health & Family Welfare Department. It was indicated that online application form will be available till 11.10.2018 by 11.59 P.M. Applications were invited online from the prospective candidates through the proforma application to be made available on WEBSITE (http://opsconline.gov.in) from 12.9.2018 to 11.10.2018. For a just and proper adjudication of the case, the relevant clauses of the advertisement are mentioned below:-
"2. Vacancy Position: As per requisition filed by the Health & Family Welfare Department of Government of Odisha the vacancy position are given below:-
Sl. No. Category No of
Vacancies
1. Schedule Caste 22 (07-W)
2. Scheduled Tribe 39 (13-W)
Total 61 (20-W)
// 16 //
3. EDUCATIONAL QUALIFICATION: (i) A candidate must have possessed a Bachelors Degree in Dental Surgery (BDS) or equivalent Degree from a Medical College or Medical Institution recognized by the Dental Council of India (DCI).
(ii) Have possessed a registration certificate under the Dentists Act-1948.
(iii) Have possessed required Conversion Certificates recognized by Dental Council of India (DCI) in case of candidates having Degrees from Universities of Foreign Countries.
4. AGE: A candidate must not be under 21 (twenty one) years and must not be above the age of 32 (thirty-two) years as on 1st January, 2018 i.e. he/she must not have been born earlier than 2nd January 1986 and not later than 1st January 1997. Age relaxation shall be as per government rules prescribed for the purpose.
8. OTHER ELIGIBILITY CONDITIONS:
(vii) Only those candidates, who possess the requisite qualification and within the prescribed age limit etc. by the closing date of receipt of online application, will be considered eligible;
9. IMPORTANT POINTS:
(iv) Admission to examination will be purely provisional. If on verification at any stage before or after the examination, it is found that a candidate does not fulfil any of the eligibility conditions, his/her candidature will be liable to rejection.
Decision of the Commission in regard to eligibility or otherwise of candidate shall be final.
(xiii) Admission to examination will be provisional. If on verification at any stage before or after the examination, it is found that a candidate does not fulfil any of the eligibility conditions, his/her candidature will be liable for rejection. Decision of the Commission in regard to eligibility or otherwise of candidate shall be final.
10. CERTIFICATES/DOCUMENTS TO BE PRODUCED FOR VERIFICATION AS AND WHEN ASKED FOR.
// 17 // Only those candidates, who will be called for the verification of original certificates & documents, will be required to bring with them the hard copy of online application, the original certificates, mark sheets etc. of the attested copies for verification on the date fixed by the Commission.
(i) H.S.C. Pass or equivalent Certificate in support of declaration of age issued by the concerned Board/Council;
(ii) Intermediate/+2 Sc. Pass Certificate issued by the concerned University/Council;
(iii) B.D.S. Degree Pass Certificate issued by DCI recognized Colleges/Institutions;
(iv) Mark-list in support of all the aforesaid examinations (i.e. from H.S.C. to Bachelor degree in Dental Surgeon) passed including fail marks, if any, issued by the concerned Board/Council/University NOTE: (a) Candidates who have not been awarded percentage of marks, but only "GRADE MARKS'', should, along with their applications, produce the conversion certificate from the concerned University indicating the actual equivalent percentage of marks and the conversion formula, failing which, their applications are liable to be rejected.
(b) While filling up the relevant box of the online application form, the candidate has to mention details of the marks secured (excepting m arks secured in the Extra Optional/4th Optional Subject) in each semester/examination passed (i.e. H.S.C. to B.D.S. Degree)
(v) Compulsory Houseman-ship Completion Certificate;
(vi) Medical Registration Certificate under the Dentist Act, 1948;
(vii) Required Conversion Certificates recognized by Dental Council of India (DCI) in case of candidates having Degrees from Universities of Foreign Countries;
// 18 //
(viii) A "No Objection Certificate" from the Head of Office/Head of the Department in case of Government Servant;
(ix) Attach two recent passport size photographs (unsigned & unattested), with the printout/hard copy of online application form which has been uploaded;
(x) Certificates of character and conduct from the Principal/Proctor/Dean or Professor in charge of Teaching Department of the College or University in which he/she last studied;
(xi) Caste Certificate by birth in support of claim as S.C./S.T, wherever applicable (Please see Note- I); Concession meant for S.C./S.T. are admissible to Scheduled Castes/Scheduled Tribes of Odisha only;
(xii) Odia Pass Certificate from the competent authority as required under para -8 (iii) of the advertisement;
(xiii) Discharge Certificates of Ex-Serviceman issued by the Commanding Officer of the Unit last served wherever applicable;
Ex-servicemen must submit an Affidavit that he has not been appointed against any civil post after retirement from military service.
(xiv) Disability Certificate (indicating percentage of permanent disability) issued by the concerned Medical Board, wherever applicable;
(xv) If a candidate claims to possess qualification, equivalent to the prescribed qualification, the rule/authority (With number and date) under which it is so treated, must be furnished with the Application Form;
(xvi) Certificate from competent authority in support of past service as in service doctors under Government of Odisha in respect of candidates who claim age relaxation as serving Doctors. The period o[past service as Medical Officer will be taken into account by the Closing date o[receipt o[online applications:
// 19 // (xvii) Candidates claimed to be Sports persons are required to submit Identity Card issued by the Director of Sports, Odisha, wherever applicable;
NOTE-I Candidates claiming to be belonging to S.C./S.T./S.E.B.C. category by birth are required to submit copy of the relevant Caste Certificate issued by the competent authority in the prescribed form.
(i) Women candidates belonging to S.C./S.T. category are required to submit Caste Certificates by birth showing "daughter of ........................... ". Caste Certificates by virtue of marriage (i.e. showing "wife of ...................... ") are not acceptable.
(ii) Community (Caste status) once mentioned by the candidates shall not be changed under any circumstances.
The competent authorities to issue Caste Certificates are: - District Magistrate/ Collector or Additional District Magistrate or Sub-divisional Magistrate/Sub- Collectors or Executive Magistrates or Revenue Officers, not below the rank of Tahasildar/Additional Tahasildar of Government of Odisha;
NOTE-2 Degree certificate, caste certificate, odia test pass certificate, discharge certificate of Ex-Servicemen and disability certificate of PWD candidates (indicating % of permanent disability) must have been issued by the competent authority within the last date fixed for receipt of online applications.
CLOSING DATES ON LINE APPLICATIONS WILL BE AVAILABLE TILL 11.10.2018 11.59 P.M."
9. The petitioner, having possessed the requisite qualification as prescribed in Clasue-3 and having come within the age limit prescribed under Clasue-4 and // 20 // satisfied other eligibility conditions as per Clause-8, applied for the post of Dental Surgeon in Group- 'A' (Jr) of Odisha Medical Services (Dental) Cadre, in the prescribed proforma available in the website. On consideration of the application and documents filed by the petitioner, he had been noticed to appear the written test by issuing necessary admit card in his favour vide Annexure-6. Accordingly, the petitioner appeared the written examination held on 19.05.2019 and came out successful. Thereafter, he had been called upon on 11.07.2019 to come with the hard copy of the online application, filled in "attestation form and bio-data form"
(to be downloaded from the website of the commission) along with the original and photocopies of all certificates/ documents (as mentioned in Para-10 of the advertisement) and photograph as uploaded and to produce the same in person on the date and time of verification. In compliance to the same, the petitioner appeared along with all documents, as mentioned in clause-10 of the advertisement, including Compulsory // 21 // Housemanship Completion Certificate and Medical Registration Certificate under the Dentist Act, 1948. The documents were verified duly by the authorities, but, vide notice dated 12.09.2019 under Annexure-8, the candidature of 13 candidates, including the petitioner, has been rejected on the plea that they have not completed Housemanship by 11.10.2018, the closing date for submission of online application. As it reveals from the advertisement, the same was not the condition precedent to make an application for appearing the written test, rather, Clause-3 of the advertisement is more specific that the candidate must have possessed the requisite qualification as prescribed therein. The last date of submission of application being 11.10.2018, the provisional certificate issued by the Utkal University clearly indicates that the petitioner had passed the final B.D.S. Examination by March, 2018 from Hi-Tech Dental College & Hospital, Bhubaneswar having Roll No.4013H060 and by the last date of submission of application he was undergoing compulsory Rotating // 22 // Housemanship for 12 months, which he completed on 05.06.2019, admittedly after the last date of submission of application. Since the petitioner possessed the Bachelors Degree in Dental Surgery (BDS) by March, 2018, he submitted his application. His application was processed and he was allowed to appear in the written examination, where he qualified. When he was called upon for certificate and document verification in terms of Clause-10 of the advertisement, he produced all such documents as mentioned in Sub Clauses- (i) to (xvii) of Clause-10 and from such documents, it was found that he has not completed Compulsory Housemanship Certificate by the last date of submission of application and accordingly his candidature was rejected. This action itself is arbitrary, unreasonable and contrary to the provisions of law. If a candidate was allowed to sit in the examination and qualified in the written examination, as per Clause-10 of the advertisement, he was to only produce the documents for verification, which he adhered to, and if by that time he possessed // 23 // all the required documents, on a flimsy ground his candidature could not have been rejected. Therefore, the action so taken by opposite party no.2 in Annexure-8 dated 12.09.2019 debarring the petitioner from recruiting to the post of Dental Surgeon cannot sustain.
10. In the counter affidavit filed by opposite party no.2, in paragraphas-6 and 7 it has been indicated as follows.
"6. That, basing on the information submitted by the candidates in their online application, applications of 06 (02-w) candidates were rejected by the Commission on the ground of "Odia Test not passed" and 47 (26-w) of candidates including the petitioner were provisionally allowed to appear at the written examination which was held on 19.05.2019. After the written examination, 29 (19- w) of candidates including the petitioner were qualified in the said written examination and called for verification of original certificates/ documents vide OPSC Office Notice No. 4485/PSC, dt 11.07.2019 which was scheduled to be held on 25.07.2019 & 26.07.2019. All the 29 (19-w) candidates including the petitioner had attended the same. During the course of verification, it was noticed that 13 candidates including the petitioner Dr. Varsachala Chetan had no "required qualification" as on the last date of submission of online application form. On verification, it is found that the petitioner had completed Housemanship on 05.06.2019 which was after the last date of submission of online application form and thus, treated ineligible for selection to the said post. Accordingly, the Commission had rejected the candidature of those 13 candidates on the ground of not completed Housemanship by 11.10.2018, i.e. the closing date of submission of online application vide OPSC Office Notice No. 5857/PSC, dt. 12.09.2019 (Annexure-8 of the writ petition).
// 24 //
7. That it is pertinent to mention here that, the Hon'ble Apex Court of India in their decision dt. 28.08.2019, passed in Civil Appeal No. 6669 of 2019 (Arising out of SLP (C) No. 14093 of 2019) have directed that the instructions given by the Public Service Commission are mandatory having the force of law and they have to strictly complied with. Strict adherence to the terms and conditions of the instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution of India cannot relax/modify the instructions issued by the Commission. In view of the aforesaid decision of the Hon'ble Apex Court, the writ petition may not be entertained and is liable to be dismissed. A copy of the judgment of the Hon'ble Apex Court is annexed herewith as Annexure-A/1. Hence the Commission have done nothing wrong and illegal in rejecting the candidature of the Petitioner as per terms and conditions of the Advertisement."
11. From the aforesaid pleadings available on record, it is made clear that candidature of 06 (02-W) candidates, who had submitted their applications through online, having not satisfied the requirement in terms of the advertisement, was rejected by the Commission. Therefore, if the petitioner had not satisfied the requirement of the advertisement, having no requisite qualification, he should not have been called upon to appear the examination. Once the petitioner was called upon and allowed to appear in the examination, subsequent rejection of his candidature at // 25 // the stage of document verification, is absolutely misconceived one. More so, under NOTE-2 of Clause-10 of the advertisement, the required certificates/ documents to be produced, such as degree certificate, caste certificate, odia pass certificate, discharge certificate, Ex-servicemen and disability certificate of PWD candidates (indicating % of permanent disability) must have been issued by the competent authority within the last date fixed for receipt of online applications. Undoubtedly, it is one of the mandatory requirements prescribed in the advertisement that these documents are to be filed within the last date fixed for receipt of online application. But there was no mention with regard to production of Compulsory Housemanship Completion Certificate and Medical Registration Certificate under the Dentist Act, 1948. Thereby, these documents may be required for verification of documents as per the advertisement, but not mandatorily required to be obtained before the last date of submission of online application. If that be so, // 26 // opposite party no.2 could not have rejected the application on the ground that the petitioner does not possess the compulsory Housemanship Completion Certificate and Medical Registration Certificate under the Dentist Act, 1948 before the last date of submission of application, which is not required under NOTE-2 of Clause-10 of the advertisement. Thereby opposite party no.2 is estopped from taking such a plea and as such, the same is hit by principle of estoppel.
12. Section-115 of the Indian Evidence Act, 1872 deals with Estoppel, which reads as follows:-
"115. Estoppel:- When one person has, by this declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
To bring the case within the scope of estoppel as defined in Section 115 of the Evidence Act;
1. There must be a representation by a person or his authorized agent to another in any form, a declaration, act or omission;
2. The representation must have been of the existence of a fact and not of promises be future or intention which might or might not be enforceable in contract;
3. The representation must have been meant to be relied upon;
4. There must have been belief on the part of the other party in its truth;
5. There must have been action on the faith of that declaration, act or omission that is to say, the // 27 // declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to this prejudice or detriment;
6. The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice;
7. The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel;
8. Only the person to whom representation was made or for whom it was designed can avail himself of it."
13. Similar question had come up before this Court in the case of Suresh Chandra Choudhury v. The Berhampur University and others, AIR 1987 Orissa 38. In paragraph-6, this Court held as follows:-
"6. As noticed earlier, the petitioner was not entitled to be declared as 'passed' in view of the provisions under Regulation 19 of the Berhampur University Regulations requiring the candidate to secure minimum 40 per cent marks in practical examination to pass in that subject. Therefore, the declaration that the petitioner passed in the examination was clearly erroneous. The petitioner could not have been misled by the representation of the University authorities since the mark sheet sent to the College admittedly showed that he failed to secure the minimum requisite percentage in the Physics practical examination. Directing the University to comply with its declaration would be compelling the authority to act against the statute. On the aforesaid analysis, I am unable to persuade myself to accept the contention of the learned counsel for the petitioner that the action of the authorities declaring the petitioner to have failed in the examination is hit by the rule of estoppel.
14. Applicability of principle of estoppel has been dealt by the apex Court in the case of Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, AIR // 28 // 1982 SC 121 and while doing so, the apex Court observed that it is also a well-known principle that there can be no estoppel against a statute.
15. In Black's Law Dictionary, 7th Edn. at page 570, 'estoppel' has been defined to mean a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.
16. In B.L. Sreedhar v. K.M. Munireddy, (2013) 2 SCC 355 (365), it has been held by the apex Court that 'estoppel' is based on the maxim allegans contrarir non est audiendus (a party is not to be heard contrary) and is the spicy of presumption juries et de jure (absolute, or conclusive or irrebuttable presumption).
17. In the case of H.R. Basavaraj v. Canara Bank, (2010) 12 SCC 458, the apex Court while dealing with the general word, 'estoppel' stated that 'estoppel is a principle applicable when one person induces another or intentionally causes the other person to believe // 29 // something to be true and to act upon such belief as to change his/ her position. In such a case, the former shall be estopped from going back on the word given. The principle of estoppel is only applicable in cases where the other party has changed his positions relying upon the representation thereby made.
18. Similar view has also been taken by this Court in the case of M/s. Balasore Alloys Ltd. & Anr. Vs. State of Odisha & Ors, 2019 (I) ILR-CUT-214.
19. In Ashok Kumar Sharma (supra), it has been observed that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.
Therefore, if the advertisement does not stipulate such condition, indicating as the ground for rejection, opposite party no.2 cannot act contrary to the condition stipulated in the advertisement, and, thereby, // 30 // the entire action taken by the Orissa Public Service Commission rejecting the candidature of the petitioner cannot sustain in the eye of law.
20. In G. Hemalathaa (supra), in paragraph-7, it has been observed by the apex Court that the instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the instructions is of paramount importance.
21. It is of relevance to note that, the petitioner has not violated any of the conditions and instructions issued by the Orissa Public Service Commission, which is mandatory. Though it was stated that the candidates were allowed provisionally, mere mentioning of the word 'provisional' cannot debar the petitioner from satisfying the requirement of conditions stipulated in the advertisement itself. If the petitioner has satisfied the requirement issued in the advertisement and by the time // 31 // of verification of the documents, the petitioner had possessed the required documents, in that case, rejection of his candidature on the ground that he does not possess the minimum qualification as on the last date of submission of application, cannot sustain in the eye of law.
22. In Mahendra Singh Gill Vs. Chief Election Commission, New Delhi, AIR 1978 SC 851 the apex Court held that when a statutory functionary made an order based on certain ground, its validity must be judged by the reasons so mentioned and not be supplemented by a fresh reason in shape of affidavit or otherwise.
23. In Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, AIR 2016 SC 1098, the apex Court at paragraph-9 quoted the settled law to the extent that the State is meant to be a model employer and must give due importance to the fundamental rights of equality and // 32 // opportunity in the matter of public appointment guaranteed under Article 14 and 16 of the Constitution of India. The Apex Court, however held that candidates submitting caste certificate after cut off date mentioned in advertisement cannot be held ineligible for selection to the post.
24. Considering the factual and legal matrix discussed above, this Court is of the considered view that rejection of the candidature of the petitioners both in W.P.(C) No. 18119 of 2019 and W.P.(C) No. 18127 of 2019, vide notice dated 12.09.2019, on the ground of non-completion of Housemanship by 11.10.2018, i.e., the closing date for submission of online application, cannot sustain in the eye of law and the same is liable to be quashed and hereby quashed.
25. Consequently, this Court directs opposite party no. 2-Odisha Public Service Commission to call upon the petitioners in both the writ petitions to appear at the interview to be conducted by constituting a // 33 // special selection committee for the purpose of recommendation for recruitment to the post of Dental Surgeon in Group-'A' (Jr.) of Odisha Medical Service (Dental) cadre for SC & ST candidates under Health and Family Welfare Department pursuant to the advertisement No. 06 of 2018/19. The entire exercise shall be completed within a period of three months from the date of communication of this judgment.
26. Both the writ petitions are accordingly allowed. No orders as to costs.
.................................. DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 18th November, 2021, Arun