Orissa High Court
Tarjan Patra vs State Of Odisha And Others on 25 April, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK
W.P.(C). No.6271 OF 2016
An application under Article 226
of the Constitution of India.
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Tarjan Patra.
......... Petitioner
-Versus-
State of Odisha and others.
......... Opposite parties
For petitioner - Miss Saswati Mohapatra.
For Opp.party nos.2- Mr. P.C. Panda
and 3
For Opp.party no.4- M/s. Samir Kumar Mishra,
J. Pradhan, S. Pattanayak,
S. Rout, S.S. Samal, P.K. Jena.
PRESENT:-
THE HON'BLE SHRI JUSTICE BISWANATH RATH
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Date of hearing : 17.04.2018 Date of Judgment : 25.04.2018
Biswanath Rath, J.This is a writ petition seeking a direction as against opposite party no.3 not to consider the candidature of opposite party no.4 for his lacking essential qualification following the advertisement under Annexure-1.
2. Short background involved in the case is that the petitioner is a 10+2 qualification holder. Petitioner claimed to be eligible for the post of Multi-purpose Assistant, otherwise known as "Grama Rozgar Sevak". Pursuant to issuing an 2 advertisement dated 07.11.2015 calling for application from intending candidates for the post of Grama Rozgar Sevak vide Annexure-1, petitioner applied for the post along with private opposite party no.4. Facts further reveal that on consideration of the testimonials submitted by different candidates, the Authority published provisional merit list for the post of Grama Rozgar Sevak in Kalipal Gram Panchayat wherein name of the petitioner appeared at sl.no.2 whereas name of opposite party no.4 appeared at sl.no.1 contending that. Positioning the opposite party no.4 at sl.no.1 taking into consideration his Diploma qualification becomes bad for being contrary to the qualification clause contained in the advertisement. Miss Mohapatra, learned counsel appearing for the petitioner stated that for the conditions contained at Clause (c), (d) and (j) the position of the respective parties so far it relates to Class-X and +2 pass becomes material.
3. For the conditions contained in the advertisement, Miss Mohapatra, learned counsel appearing for the petitioner contended that for the advertisement clearly indicating the qualification for consideration becomes 10+2 pass, a Diploma holder could not have been considered for the post involved. Taking this Court to the Government circular treating the Diploma qualification with +2 pass, Miss Mohapatra, learned 3 counsel appearing for the petitioner contended that there being no indication of consideration of case of the Diploma holder in the advertisement, consideration of the candidature of opposite party no.4 since not a 10+2 pass holder becomes illegal. Miss Mohapatra, learned counsel appearing for the petitioner further taking this Court to two decisions of the Apex Court in the case of Bedanga Talukdar vrs. Saifudaullah Khan and others, reported in (2011) 12 SCC 85 and in the case of Prakash Chand Meena and others vrs. State of Rajasthan and others, reported in (2015) 8 SCC 484, contended that for the support of the decisions to the case of the petitioner, consideration of the candidature of opposite party no.4 and his positioning above the petitioner should be declared bad in law.
4. Shri P.C. Panda, learned counsel appearing for opposite party nos.2 and 3 taking this Court to the pleadings in the counter affidavit at the instance of opposite party nos.2 and 3, submitted that for the Government circular making +2 qualification equivalent to Diploma in particular streams being issued much ahead of the publication of the advertisement, the advertisement involved herein did not require any such indication. Further, in the absence of challenge to the clarification of the Government circular dated 19.06.2014 treating the Diploma in particular stream equivalent to +2 4 examination in those particular streams not being challenged, the petitioner has no case otherwise even. It is in the circumstances, Shri Panda, learned counsel appearing for opposite party nos.2 and 3 contended that there is no infirmity in the selection process requiring any interference by this Court. On the decisions cited by Miss Mohapatra, learned counsel appearing for the petitioner, Shri Panda, learned counsel appearing for opposite party nos.2 and 3 submitted that for no matching of the facts involving the case at hand and the case involving in the cited decisions, the decisions indicated hereinabove have no application to the case at hand.
5. Shri Samir Kumar Mishra, learned counsel appearing for the private opposite party no.4 on reiteration of his client's response in the counter affidavit filed here, referring to the documents accompanied therein as well as the documents accompanied the counter by opposite party nos.2 and 3 and as referred to hereinabove, while justifying the process of selection and consideration thereof, contended that there is no illegality or infirmity in the selection process requiring any interference of this Court.
6. Considering the rival contentions of the parties, this Court finds, the petitioner is a 10+2 pass holder whereas private opposite party no.4 is a 10+Diploma holder. Looking to 5 the documents appearing at Annexure-A/3 to the counter affidavit, it appears, the document clearly indicates that vide letter dated 24.05.2014 it was clarified to the Secretary, Council of Higher Secondary Education, Bhubaneswar that three years of Diploma in Engineering in different streams conducted by the State Council of Technical Education & Vocational Training, Odisha with foundation subjects like Physics, Chemistry, Mathematics and English has been treated as equivalent with +2 Science conducted by C.H.S.E. Odisha with effect from 16.11.2013. This letter further disclosed, while issuing such clarification it was also intimated that the Department is awaiting a further clarification as to how to treat the candidates having equivalent qualification prior to 16.11.2013 and applied for the post having +2 or equivalent qualification. So, from this communication, it becomes clear that there is already a decision at the appropriate level for treating the Diploma holders in the particular subjects in the Science stream to be equivalent to +2 Science except a clarification on the treatment of candidates prior to 2013. This communication was followed with a Notification dated 25.06.2014 appearing at Annexure- B/3 of the counter affidavit of opposite party nos.2 and 3 indicating therein that the Council of Higher Secondary Education, Bhubaneswar recognized the examinations like 3 6 years Diploma Course in Engineering Branch conducted by SCTE & VT, Odisha as equivalent with +2 Science stream conducted by CHSE, Odisha having basic foundation subjects like Physics, Chemistry, Mathematics and English with effect from the date of issue of the said order. It is under the circumstances, this Court finds, there is clear decision of the Government in appropriate Department to treat 3 years Diploma in Engineering subject qualification in par with that of +2 Science in particular Science subjects. There is no statement forthcoming regarding any challenge to this circular / communication by any concerned as of now. This Court, therefore, observes, there is sufficient intimation to the general public including the applicants regarding treatment of Diploma as equivalent to +2 Science. It is at this stage, this Court finds, the advertisement involved herein was brought out on 07.11.2015 much after the above communications and it is nobody's case that decision on equivalence was taken during consideration involved herein. For the existence of the circulars much prior to floating of the advertisement involved herein, the indication or no indication in the advertisement regarding consideration of 3 years Diploma candidates for the purpose to the view of this Court becomes redundant, particularly for treating the Diploma equivalent to +2 Science came into force 7 much before the selection process was initiated. At this stage, looking to the provisional merit list appearing at Annexure-3, this Court finds, for the difference in the qualification, there is application of different marks pattern for both the candidates appearing at sl.no.1 and sl.no.2. From the comparison of the marks, it clearly appears, the private opposite party no.4 is a better candidate than the petitioner herein. To make it more specific, the petitioner has secured 53.70% of marks in HSC & +2 whereas the private opposite party no.4 has secured 73.54% of marks. This Court for finding the private opposite party no.4 a better candidate and for the existence of the decision of the Government to treat the Diploma holder equivalent to 10+2 and further no challenge being made to such decision of the Government, finds, there is no force in the submission of Miss Mohapatra, learned counsel appearing for the petitioner. For the observations made hereinabove, this Court for the difference in the factual position involving, the decisions cited by Miss Mohapatra, learned counsel appearing for the petitioner have no application to the case at hand. As a result, this Court finds, the writ petition bears no merit.
7. While dismissing the writ petition, this Court since finds the petitioner who appeared at second position in the provisional merit list was kept as a first waiting candidate in the 8 provisional merit list prepared in the year 2016, this Court, therefore, observes, in the event the term of the list has not expired and in case of any future vacancy and the petitioner is not employed otherwise in the meantime, the petitioner may be considered as against future vacancy.
8. The writ petition stands dismissed, but however with the above observation, but without costs.
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Biswanath Rath, J.
Orissa High Court, Cuttack, The 25th day of April, 2018 /MRS