Orissa High Court
B.P. Sibasankar vs State Of Odisha & Anr. .... Opposite ... on 27 October, 2022
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.4277 of 2015
B.P. Sibasankar .... Petitioner
Mr. J.K. Lenka, Adv.
-versus-
State of Odisha & Anr. .... Opposite Party
Mr. H.K. Panigrahi, Adv.
(SAT (Cuttack)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
Order ORDER
No. 27.10.2022
04.
1. This matter is taken up through hybrid mode.
2. The present petition has been filed challenging the
Annexures-6 & 9 dated 08/10/2015 & 03/11/2015
respectively in not shortlisting the candidates for
interview to the post of Lecturer in Commerce at the
ratio of 1:3 and more and rejecting the claim of the
petitioner with respect to his participation in the
interview.
3. Shorn of unnecessary details, the substratum of matter
presented before this court remain that pursuant to
Advertisement bearing No. 05/2013-14 dated 24/06/2013,
the Opposite Party invited applications for recruitment
to 281 posts of Lecturer in different disciplines in
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(Group-A) of O.E.S (College Branch) of Govt. Degree
Colleges of the State under the Department of Higher
Education in the scale of Rs.15,600-39,100/- carrying
academic grade pay of Rs.6000/-.
4. The petitioner, being eligible applied for the post of
Lecturer in Commerce. The OPSC issued a corrigendum
dated 16/01/2014 notifying that the vacancies have been
enhanced to 42 nos. for recruitment to the post of
Lecturer in Commerce. Consequently, vide impugned
order dated 08/10/2015, it was notified that 28
candidates (including the petitioner) have not been
considered by the Commission for interview as they
could be shortlisted on the basis of evaluation of their
academic career as per para-6 of the Advertisement
dated 24/06/2013. The relevant section has been
extracted hereinbelow for reference:
"The selection of candidates for recruitment to
the posts will be made on the basis of career
assessment and viva-voce. The Commission at
their discretion may shortlist the candidates to a
reasonable number, for conducting interview by
making a preliminary selection on the basis of
evaluation of their academic career taking into
account the requisite educational qualification."
5. It is submitted by Learned Counsel for the Petitioner
that out of total of 42 vacancies for the post of Lecturer
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in Commerce, only 66 candidates were called for
interview. The Commission shortlisted candidates for
the post of Lecturer in Commerce in the ratio of 1:1.5
whereas the recruitment to the posts of Lecturer in
Anthropology and Economics were carried out in the
ratio of 1:3 plus out of the total advertised vacancies.
6. Furthermore, it is contended by Learned Counsel for the
Petitioner that the executive decision of the Opposite
Party in following two different ratio structures for
recruitment to the post of Lecturers in Commerce and
Anthropology & Economics is discriminatory and
violative of Articles 14 & 16 of the Constitution of India.
It is submitted that had the ratio of 1:3 plus been
adopted for the recruitment to the posts of Lecturer in
Commerce, the petitioner would've got a fair chance in
qualifying for the interview.
7. Per Contra, it is contended by Learned Counsel for the
State that the Commission had taken a decision in the
meeting dated 16.12.1997 that where the number of
vacancies is up to 2 (two), the number of candidates to
be called for interview may be 5. Where number of
vacancies exceed 2, the number of vacancies to be called
for interview may be twice the number of vacancies.
Moreover, it is also submitted by Learned Counsel for
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the State that due to lower rank in the career assessment
in comparison to the other candidates, the petitioner
was not shortlisted to be called for the interview to the
said post.
8. On perusal of the abovementioned pleadings, this court
is of the view that when a large number of candidates
are available having the basic qualifications prescribed
for competing for appointment to a particular post or
class of posts and where the available posts are limited,
necessarily, the State, therefore, is compelled to make a
further assessment of the relative merits of all the
competing candidates by some legally permissible
method. Assessment of one's academic career such as
the one conducted in the present case is one such
method. The due assessment of academic careers is a
process of filtering or eliminating the less suitable
candidates though they possess the basic qualification
prescribed by the State in the context of a given
post/class of posts and have met the minimum
qualifying criteria. Such filtering process can take
various forms depending upon the nature of the posts
sought to be filled up and the mode of filtering may
vary from time to time and also from class to class of the
posts sought to be filled up.
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9. In the case of Maharashtra Public Service Commission
v. Sandeep Shriram Warade1, the Supreme Court
observed:
"The essential qualifications for appointment to
a post are for the employer to decide. The
employer may prescribe additional or desirable
qualifications, including any grant of preference.
It is the employer who is best suited to decide the
requirements a candidate must possess according
to the needs of the employer and the nature of
work. The court cannot lay down the conditions
of eligibility, much less can it delve into the issue
with regard to desirable qualifications being at
par with the essential eligibility by an
interpretive re¬writing of the advertisement.
Questions of equivalence will also fall outside the
domain of judicial review. If the language of the
advertisement and the rules are clear, the Court
cannot sit in judgment over the same. If there is
an ambiguity in the advertisement or it is
contrary to any rules or law the matter has to go
back to the appointing authority after
appropriate orders, to proceed in accordance with
law. In no case can the Court, in the garb of
judicial review, sit in the chair of the appointing
authority to decide what is best for the employer
and interpret the conditions of the advertisement
contrary to the plain language of the same."
10.The Apex Court in the case of Maharashtra State Board
of Secondary and Higher Secondary Education v.
1
CIVIL APPEAL NO(s). 4597 OF 2019
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Paritosh Bhupeshkumar Sheth and others2 observed
hereasunder:
"The Court should be extremely reluctant to
substitute its own views as to what is wise
prudent and proper in relation to academic
matters in preference to those formulated by
professional men possessing technical expertise
and rich experience of actual day-to-day working
of educational institutions and departments
controlling them. It will be wholly wrong for the
Court to make a pedantic and purely idealistic
approach to the problems of this nature, isolated
from the actual realities and grass root problems
involved in the working of the system and
unmindful of the consequences which would
emanate if a purely idealistic view as opposed to
a pragmatic one were to be propounded."
11.The petitioner participated in recruitment process
conforming to the eligibility criteria and method of
selection provided in the advertisement dated
24.06.2013. Even though the petitioner was aggrieved by
the adoption of a different ratio structure in comparison
to other disciplines, he did not espouse their remedy.
Instead, he participated in the recruitment process and it
was only upon being unsuccessful that he challenged
the inclusion of the concerned screening process in the
2
1984 AIR 154
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writ petition. This was clearly not open to the petitioner.
The principle of estoppel would operate.
12.The Supreme Court clarified a decision of the Punjab &
Haryana High Court in Rameshwar Nath Moudgil v.
State of Punjab3, wherein it was apparently held
otherwise. The facts of the said case were that the
eligibility criteria to the post in question were altered
retrospectively during the pendency of the process of
selection. Such alteration jeopardized the chances of
Rameshwar Nath. The Punjab & Haryana High Court
held that such a retrospective alteration would violate
the provisions of Article 14 & 16 of the Constitution of
India. The Supreme Court observed hereasunder:
"......the authority which has the power to
specify the method of recruitment must be
deemed to have the power to revise and
substitute the same in the same manner...such
an inherent power exists in the authority to
alter, vary, change or replace its creation."
13.In the case of Jai Singh Dalal and Ors. vs State of
Haryana and Anr4, the Supreme Court iterated that:
"There is no prohibition in law preventing the
State from altering the process of selection in the
midstream as long as such an alteration did not
render any one of the otherwise eligible
3
W.P (C) 1464 of 1976
4
1993 Supp (2) SCC 600
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candidates ineligible to participate in the
selection process. All that the alteration in
question sought to achieve is to enable some
more candidates also to participate in the
selection process. The power to make such
alteration is within the power of the State."
14.In the present case, the petitioner was not shortlisted
owing to his lower rank in the academic career
assessment in comparison to other candidates and
hence, was not considered eligible to advance into the
interview stage of the recruitment process. It is a settled
position that the unsuccessful candidates cannot turn
back and assail the selection process. The petitioners
took a calculated chance and appeared for the
recruitment process but simply because the result was
not palatable to him, he cannot turn around and
challenge the method of selection in the recruitment
process.
15.The law on the subject has been crystalized in several
decisions of the Supreme Court. In Chandra Prakash
Tiwari v. Shakuntala Shukla5, the Supreme Court laid
down the principle that
"....when a candidate appears at an examination
without objection and is subsequently found to
be not successful, a challenge to the process is
5
Appeal (civil) 3441-3446 of 2002
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precluded. The question of entertaining a
petition challenging an examination would not
arise where a candidate has appeared and
participated. He or she cannot subsequently turn
around and contend that the process was unfair
or that there was a lacuna therein, merely
because the result is not palatable."
16.In the case of Ramesh Chandra Shah & Ors vs Anil
Joshi6, the Supreme Court observed:
"In view of the propositions laid down in the
above noted judgments, it must be held that by
having taken part in the process of selection with
full knowledge that the recruitment was being
made under the General Rules, the respondents
had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
17.In the case of Pradeep Kumar Rai v. Dinesh Kumar Pandey7, the Supreme Court held that :
"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found 6 CIVIL APPEAL NOS. 2802-2804 OF 2013 7 CIVIL APPEAL NO.6549 OF 2014 Page 9 of 12 // 10 // themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
18.Much has been argued by the petitioner with respect to the ratio structure adopted for shortlisting candidates for interview to the post of Lecturer in Commerce. According to him, the adoption of a different ratio structure as compared to other disciplines is discriminatory and violative of Article 14 & 16 of the Constitution of India. This court found absolutely no merit in this argument. In the instant case, it was clarified vide Paragraph 6 of advertisement dated 24.06.2013 that the Commission at their discretion may shortlist candidates to a reasonable number. This court is of the opinion that the Commission is placed in a better position to ascertain the method of selection of the candidates and it has every justification to suggest or set priorities in fixation of screening methods in order to filter out the deserving candidates for the interview process.
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19.Normally, rules following which the selection has commenced cannot be changed/altered but nothing prevents the Commission to take measures for screening of candidates, if candidates in large numbers apply for employment and the need to restrict the zone of consideration is felt. Similarly, method of selection for shortlisting could be set without prejudicing the right of any candidate, not based on considerations that are extraneous but based on reasonable and bona fide intention.
20.The selection made by an authority for appointment is not ordinarily open to judicial scrutiny because whether a candidate is fit for a particular post or not, has to be decided by the duly constituted Appointing Authority/Selection Committee which has the expertise on the subject. Since it lacks the expertise, it is not the function of the Court to hear appeals over the decisions of Selection Committees and to scrutinize the relative merits of candidates.
21.The cardinal principle pertaining to service jurisprudence is that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Page 11 of 12 // 12 // legislature or its delegate and to strike down as unreasonable a regulation or resolution merely on the ground that the policy enunciated therein does not meet with the approval of the court in regard to its efficaciousness for implementation.
22.If a candidate despite being aware of any defect or infirmity in a process of selection appears at the examination for recruitment/interview by taking a calculated chance, and finds the result of such examination/interview not palatable to him, he cannot turn around and subsequently contend that the process of examination/interview was either defective or unfair.
23.In the final analysis, this Court is of the opinion that the Writ Petition is devoid of merits for the foregoing reasons and is, accordingly, liable to fail. The challenge in this Writ Petition should be spurned, being hit by the doctrine of approbation and reprobation. The Writ Petition is dismissed. No order as to costs.
(Dr. S.K. Panigrahi) Judge B.Jhankar Page 12 of 12