Orissa High Court
Kishore Chandra Dixit vs State Of Odisha & Others .... Opposite ... on 3 October, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C ) NO.32574 of 2022
In the matter of an application under Article 226
of the Constitution of India
..................
Kishore Chandra Dixit .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner :M/s. D.K. Pattnaik, S. Mishra,
J.Sahoo, S.S. Parida & A. Mishra,
Advocate
For Opp. Parties : M/s. R.N. Mishra, AGA
(for Opp. Party Nos.1 & 2)
M/s. A. Behera, Advocate
(for Opp. Party No.3-OPSC)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 06.07.2023 and Date of Judgment: 03.10.2023
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Biraja Prasanna Satapathy, J.
The Present Writ Petition has been filed challenging the order dt.22.11.2022 so passed by Opp. Party No.3 under Annexure-15 wherein the claim of the Petitioner to get appointment as against the post of Asst. Professor (Teacher Education) in Educational Studies in PWD category-2 was rejected.
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2. It is the case of the Petitioner that pursuant to the advertisement issued by the Orissa Public Service Commission (hereinafter called as <The Commission=) on 27.07.2021 vide advertisement No.9 of 2021-22 under Annexure-1, the Petitioner made his application for the post of Asst. Professor (Teacher Education)-Stage-1 under Annexure-2. Vide the said advertisement, applications were invited for recruitment to 385 posts of Asst. Professor (Teacher Education) Stage-1 in different discipline of Government Teachers Training Institute of the State under Department of Higher Education in the scale of Pay Scale 7-I-I-10 in the pay Matrix under ORSP (CT) Rules, 2019 with usual D.A and allowances as admissible. Out of the 385 posts so advertised, 4% of the same i.e. 15 posts were reserved for PWD category candidates. Not only that, out of the said 385 Posts so advertised as against the discipline Teacher Education(Educational Studies), the total vacancies were indicated at 113 with the following break up.
25 for ST (8-women), 18-for S.C (6-women), 13 for SEBC(4-Women) and 57 for U.R(20-Women).
2.1. As against the aforesaid 113 posts so advertised with regard to the discipline Teacher Education (Educational Studies), 678 applications were received by the Commission Page 2 of 31 // 3 // and out of the same, 382 candidates were short-listed for document verification. During verification of such documents, candidature of further 60 candidates were rejected leaving aside 322 valid applications. Out of the 322 valid applications so arrived at, after verification of documents, 291 candidates were shortlisted for interview. The Petitioner is one of the candidate who was shortlisted for such interview and the Petitioner was noticed to appear for the interview vide Annexure-10 notice dt.15.09.2022 fixing the date of interview to 13.10.2022. Pursuant to the notice, Petitioner attended the interview on the scheduled date. But vide notification No.9622 dt.19.10.2022 under Annexure-11 series, the Commission published a list of 101 successful candidates as against the total advertised vacancies of 113 in the discipline Teacher Education(Educational Studies) and Petitioner9s name when was not reflected in the select list, Petitioner made a representation to Opp. Party No.3 on 20.10.2022 under Annexure-12 to consider his claim.
2.2. As Opp. Party No.3 did not take any action on the representation so made on 20.10.2022, Petitioner again moved Opp. Party No.3 along with Opp. Party Nos.1 & 2 on 25.10.2022 under Annexure-12 series. As no action was taken in considering the grievance raised by the Petitioner under Page 3 of 31 // 4 // Annexure-12 series, Petitioner approached this Court in WP( C) No.28997 of 2022.
2.3. This Court vide order dt.02.11.2022 under Annexure-13 while disposing the matter directed Opp. Party No.3 to take a decision on the Petitioner9s claim as made in his representation within a period of 15 days from the date of receipt of this order. The order being communicated to Opp. Party No.3, the claim of the Petitioner without proper appreciation was rejected vide the impugned order dt.22.11.2022 under Annexure-15. Challenging the said order, the present writ petition bas been filed.
3. Learned counsel for the Petitioner contended that pursuant to the advertisement issued under Annexure-1 by the Orissa Public Service Commission vide Advertisement No.9 of 2021-22 as against the total 385 vacancies indicated in different discipline, 113 posts were advertised as against the discipline Teacher Education (Educational Studies). Out of the total advertised vacancies of 385, 4% was reserved for PWD candidates, which comes to 15 posts. Taking into account the vacancies indicated in the discipline Teacher Education (Educational Studies) at 113, 4% of the vacancies comes to 4 posts.
3.1. Pursuant to the advertisement issued under Annexure- 1, as against the discipline Teacher Education (Educational Page 4 of 31 // 5 // Studies) in total 678 candidates submitted their applications. The Commission out of the said 678 applications, shortlisted 382 candidates for the purpose of document verification. On verification of documents of those 382 candidates, candidature of 60 candidates were further rejected and documents of 322 candidates were found valid. Out of the 322 applications which were found valid, the Commission shortlisted 291 candidates and issued the notice on 15.09.2022 under Annexure-10 asking the applicants to take part in the interview. Pursuant to the said notice, the date of interview of the Petitioner was fixed to 13.10.2022. Even though the Petitioner participated in the interview, but while issuing the select list on 19.10.2022 under Annexure-11 series, out of the total 113 vacancies in the discipline Teacher Education(Educational Studies), 101 candidates were selected. 3.2. Not only that since out of the total 113 vacancies in the discipline of Teacher Education(Educational Studies), 4% was reserved for PWD candidates which comes to 4 posts, only 2 candidates were selected in the category vide notification issued under Annexure-11 series on 19.10.2022.
Since the Petitioner was deprived from the purview of selection as a PWD candidate, he moved Opp. Party No.3 initially claiming his appointment on 20.10.2022. As the same Page 5 of 31 // 6 // was not considered, Petitioner again moved Opp. Party No.3 on 25.10.2022 with copy to Opp. Party Nos.1 & 2 under Annexure- 12 series. In spite of such request made by the Petitioner to consider his case, when no action was taken, Petitioner approached this Court in W.P.(C ) No.28947 of 2022. This Court vide the order dt.02.11.2022 when directed Opp. Party NO.3 to take a decision on the claim of the Petitioner, Opp. Party No.3 without proper appreciation of the Petitioner9s claim, rejected the same vide the impugned order dt.22.11.2022 under Annexure-15.
3.3. It is contended that only on receipt of the impugned order, Petitioner could know that the Petitioner has not been selected only on the ground that the Petitioner has failed to secure the minimum 50% mark in the interview which was fixed by the Selection Committee while conducting the interview of 291 candidates, who were shortlisted for such interview in the discipline Teacher Education (Educational Studies). 3.4. Learned counsel for the Petitioner contended that the recruitment in question for the post of Asst. Professor (Teacher Education)-Stage-1 in different discipline was governed by the provisions contained under the Orissa Education Service (College Branch) Recruitment Rules, 2020 so available under Annexure-17(In short, <the Rules=). The selection procedure for Page 6 of 31 // 7 // direct recruitment in the rank of Asst. Professor, Stage-1 was provided under Rule-5 of the said Rules. Rule-5(2) of the Rules provides the selection of direct recruitment to the rank of Asst. Professor(Stage-1) to be made by the Commission on the basis of merit to be judged by performance in the interview of eligible shortlisted candidates. Rule-5(6) of the Rules provides that on the basis of result of interview, the Commission shall prepare a subject wise merit list of successful candidates, arranged in order of merit, equal to the number of posts to be filled up, and furnish the same to the Government.
3.5. It is contended that as against the discipline Teacher Education(Educational Studies), since 113 posts were advertised vide Annexure-1 and 291 candidates were shortlisted for the purpose of interview, as provided under Rule 5(6) of the aforesaid Rules, the Commission was required to publish the merit list of successful candidates arranged in order of merit equal to the number of posts to be filled up. But in the case in hand, out of the 113 vacancies available, the Commission published the merit list of 101 candidates. Not only that, out of the 4 posts reserved for PWD candidates in the discipline, only two candidates were included in the merit list. It is accordingly contended that since the Commission has not followed the Recruitment Rules while conducting the Page 7 of 31 // 8 // selection with publication of the merit list under Annexure-12, the selection so conducted by the Commission is vitiated. 3.6. It is also contended that nowhere in the 2020 Rules, there is any provision for fixation of cut-off mark for the purpose of interview to be conducted amongst the shortlisted candidates. It is also contended that while issuing the advertisement under Annexure-1, no such criteria was also indicated that a candidate has to secure 50% marks in the interview, otherwise he will not be found eligible for his selection. It is accordingly contended that since neither in the recruitment rules nor in the advertisement, there was any stipulation for securing 50% mark in the interview or else the candidature will be found ineligible, such a practice followed by the Commission after conducting the interview, is not sustainable in the eye of law.
3.7. It is also contended that in the advertisement issued under Assnexure-1, nothing was indicated with regard to securing of 50% cut-off mark in the interview. Not only that while issuing notice to the shortlisted candidates to appear the interview nor prior to conducting the interview, pursuant to the notice issued on 15.09.2022 under Annexure-10, such a prescription was intimated to the candidates. Since no rules/ stipulation is either provided in the Recruitment rules or in the Page 8 of 31 // 9 // advertisement issued under Annexure-1 to secure 50% mark in the interview, the action of the Commission in fixing a cut-off mark of 50%to be secured by a candidate in the interview is not sustainable in the eye of law and consequential publication of the merit list under Annexure-12 basing on such wrong fixation of cut-off mark.
3.8. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of the Hon9ble Apex Court reported in the case of K. Manjusree Vs State of Andhra Pradesh and another, (2008) 3 SCC 512. Hon9ble Apex Court in Paragraph-27 of the said judgment held as follows:
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them 4 P.K. Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa.
3.9. Learned counsel for the Petitioner also relied on another decision of the Hon9ble Apex Court in the case of Goa Public Service Commission Vs. Pankaj Rane and Others, (2022) 11 Page 9 of 31 // 10 // SCC 742. Hon9ble Apex Court in Paragraph 23 to 28 of the said judgment held as follows.
23. In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test/computer test, only 7 candidates which included Respondents 1 to 3 cleared the test. The number stood further reduced to 4 and which again included Respondents 1 to 3. Therefore, when the question arose as to how the interview should be conducted, the Commission decided on 16-5-2017 to fix 26 marks out of 40 as cut-off marks. It no doubt works out at 60% of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard.
24. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz. the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission . That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7½ years of practice although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an advocate or pleader of Madhya Pradesh was a minimum requirement.
25. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav is concerned, this again is not a case which involved a rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the Constitution.
26. Para 13 of Yogesh Yadav is extracted hereinbelow : (SCC p.
628) <13. The instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since a benchmark was not stipulated for giving Page 10 of 31 // 11 // the appointment, what is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the <rules of the game=. The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case.
27. Though the learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case. In other words, we would think that in the facts of this case, they are closer to the facts in P.K. Ramachandra Iyer case and the judgment following the same which we have already noted. As far as Tej Prakash Pathak case is concerned, it again did not specifically involve a rule similar to Rule 12.
28. It is true that there is a distinction in the facts with those in K. Manjusree . We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P.K. Ramachandra Iyer and Durgacharan Misra for the reasons which we have already indicated.= 3.10. The decision of the Hon9ble Apex Court in the case of Ramjit Singh Kardam and others Vs. Sanjeev Kumar and Others (2020), 20 SCC 209 was also relied on by the learned counsel for the Petitioner. Hon9ble Apex Court in Paragraphs 33.1,33.2,45, 45.1 & 45.2 of the said judgment has held as follows-:
33.1. Whether the respondent writ petitioners who had participated in the selection were estopped from challenging the selection in the facts of the present case?
33.2. Whether the respondent writ petitioners could have challenged the criteria of selection applied by the Commission for selection after they had participated in the selection?Page 11 of 31
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45.The Division Bench of the High Court is right in its conclusion that the selection criteria, which saw the light of the day along with the declaration of the selection result could be assailed by the unsuccessful candidates only after it was published. Similarly, selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. We, thus, hold that the writ petitions filed by the petitioners could not have been thrown on the ground of stopped and the writ petitioners could very well challenge the criteria of selection applied by the Commission, which was declared by the Commission only at the time of declaration of the final result. We, thus, answer Points 1 and 2 as follows:
45.1. The writ petitioners, who had participated in the selection are not estopped from challenging the selection in the facts of the present case.
45.2. The writ petitioners could have very well challenged the criteria of selection, which was declared by the Commission only in the final result declared on 10-4-2010.
3.11. Making all such submissions, learned counsel for the Petitioner contended that since the process of selection so followed by the Commission in respect of the discipline Teacher Education (Educational Studies) was not conducted in accordance with the Recruitment Rules and the cut-off mark in the interview was fixed arbitrarily and without any prior notice, the selection process undertaken by the Commission in respect of the discipline Teacher Education (Educational Studies) pursuant to Annexure-1 is vitiated and calls for interference of this Court.
4. Mr. Arnav Behera, learned counsel appearing for the Commission on the other hand made his submission basing on Page 12 of 31 // 13 // the stand taken in the counter affidavit so filed by Opp. Party No.3.
Though it is not disputed by the Commission that the recruitment process pursuant to Annexure-1 is governed under Rule-5 of the 2020 Recruitment Rule, but it is contended that basing on the provisions contained under Rule 5(2) of the said Rules, the Commission adopted the system of weightage for assessing the performance of candidates in the interview. Rule 5(2) of the Rules provides that selection for direct recruitment to the rank of Asst. Professor (Stage-1) shall be made by the Commission on the basis of merit to be judged by performance in interview of eligible shortlisted candidates. 4.1. It is contended that in terms of the said provision contained under Rule-5(2) of the Rules, the Commission adopted the system of weightage for assessing the performance of the candidates in the interview. The maximum weightage was assessed at 100 and out of the said 100 mark, 40% was kept for domain knowledge, 40% of pedagogy Skill and 20% for Quality of Research Publications. The Commission also decided to select a candidate in UR/SEBC category who secure 50% of the weightage and for SC & ST category, it was fixed at 45%. The Commission also decided to fix the percentage so fixed for UR/SEBC candidates in respect of candidates applying under Page 13 of 31 // 14 // horizontal reservation like Sports person, persons with disability and ex-servicemen.
4.2. It is contended that as was decided by the Commission, PWD candidates have also to secure the minimum weightage as fixed for UR/SEBC candidates, as PWD reservation is a horizontal one. Since the Petitioner out of the 50% cut-off marks so fixed by the Commission, only secured 35 weightage mark in the interview, his name was not included in the select list so published under Annexure-11. When the Petitioner moved the Commission for consideration of his claim pursuant to the order passed by this Court in the earlier Writ Petition, his claim was considered and was rejected as the Petitioner has failed to secure the cut-off mark so fixed by the Commission. The Petitioner out of the cut-off 50% mark has secured only 35 marks and accordingly, he is not eligible to get the benefit of selection and appointment.
4.3. Learned counsel appearing for Opp. Part NO.3 however contended that though as provided under Clause-6 of the Resolution dt.25.02.2021 so issued by the State Government in the Deptt. Of Social Security and Empowerment of Persons with Disability, the authorities have been vested with the discretion to relax the standard in respect of P.W.D candidates, but with regard to the recruitment process so undertaken pursuant to Page 14 of 31 // 15 // Annexure-1., the Commission decided not to give any such relaxation to PWD candidates. It is accordingly contended that since the Petitioner failed to secure the minimum cut-off mark, so fixed by the Commission in the interview and only secured 35 marks, out of the cut-off marks fixed at 50, his candidature has been rightly rejected vide the impugned order under Annexure- 15 and it needs no interference.
4.4. In support of his aforesaid submission, learned counsel for Opp. Party No.3 relied on the decision of the Hon9ble Apex Court in the case of K.H. Siraj Vs. High Court of Kerala and Others (2006) 6 SCC 395, Hon9ble Apex Court in Paragraphs- 11,14,24,48,49,50 and 57 of the said judgment has held as follows:.
11. The Kerala Judicial Service Rules, 1991 (hereinafter referred to as <the Rules=) were made in exercise of the powers conferred by Articles 234 and 235 of the Constitution of India and sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 (19 of 1968). Rule 7 of the Rules reads thus:
<7. Preparation of lists of approved candidates and reservation of appointments.4(1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to Category
2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958.
(2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier.= xxx xxx xxx xxx
14. According to Mr L.N. Rao, Rule 7 of the Rules has to be interpreted in the following manner:
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// 16 // The High Court of Kerala shall hold examinations written and oral and prepare a list of suitable candidates for appointment to category 2. The wording written and oral means the suitability of a candidate eligible for appointment has to be considered by the aggregate marks of written examination and oral examination. The legislative intention is to take the aggregate marks of both written examination and oral examination to decide the suitability of the candidate. List has to be prepared after following such a procedure as the High Court deems fit. Procedure means the manner of doing things and not substantive. Fixing a separate minimum cut-off marks is not procedural which is an additional eligibility for the post which is contrary to Rule 7. Rule 7 is silent as to the fixation of cut-off marks which is for relaxation from time to time for the purpose of reservation. The wording procedure deems fit does not confer any power on the Selection Authority so as to take away a right provided elsewhere, reported in Raja Ram Mahadev Paranjype case , followed in Babulal Nagar v. Shree Synthetics Ltd. The Selection Authority cannot follow any procedure not in violations of the rule of reservation.
Xxx xxx xxx xxx
24. According to Mr L.N. Rao, the following questions which are posed for the consideration of this Court in these appeals/petitions are as under:
1. In the absence of specific legislative mandate under Rule 7(i) of the Kerala Judicial Service Rules, 1991 prescribing cut-off marks in oral examination whether the fixing of separate minimum cut-off marks in the interview for further elimination of candidates after a comprehensive written test touching the required subjects in detail is in violation of the statute.
2. Whether the select list (Annexure P-2) is prepared in violation of the principles of reservation as provided under Rules 14 to 17 of the Kerala State and Subordinate Services Rules, 1958?
3. Whether the first respondent the High Court has the power to decide that the reserved posts are to be dereserved to carry forward in the absence of a decision taken by the Government in this regard?
4. Whether Annexure P-2 list is liable to be struck off at its entirety?
xxx xxx xxx xxx
48. In this background, two questions raised by Mr L.N. Rao have to be considered:
1. The prescription of minimum mark for the oral examination as a condition of eligibility for selection as Munsif Magistrate is not authorised by Rule 7 of the Kerala Judicial Service Rules, 1991;
2. The select list has not been prepared in accordance with Rules 14 to 17 of the KSSSR, 1958.
49. So far as the first submission is concerned, we have already extracted Rule 7 in paragraph supra. Rule 7 has to be read in this background and the High Court's power conferred under Rule 7 has to be adjudged on this basis. The said rule requires the High Court firstly to hold examinations written and oral. Secondly, the mandate is to prepare a select list of candidates suitable for appointment as Munsif Magistrates. The very use of the word <suitable= gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the judicial officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or Page 16 of 31 // 17 // in the higher categories of Subordinate Judge, Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected.
50. What the High Court has done by the notification dated 26-3-
2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well-accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (IAS, IFS, etc.) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the notification dated 26- 3-2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as benchmark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high-powered body like the High Court to evolve its own procedure as it is the best judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high-powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. Reference in this connection may be made to the decision of this Court in Union of India v. Kali Dass Batish wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper.
xxx xxx xxx xxx
57. The qualities which a judicial officer would possess are delineated by this Court in Delhi Bar Assn. v. Union of India [(2002) 10 SCC 159 : 2003 SCC (L&S) 85] . A judicial officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the contention of the appellant-petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets zero marks may still find a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a benchmark for the oral interview, a benchmark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Page 17 of 31 // 18 // Munsif Magistrate, as assessed by five experienced Judges of the High Court.
4.5. With regard to the provisions contained under Rule 5(6) which mandates that the Commission shall prepare a subject- wise merit list of successful candidates equal to the number of posts to be filled up, learned counsel for the Commission contended that the word 8shall9 so reflected under Rule 5(6) cannot always be treated as 8shall9 and it may be read as 8may9 in some of the cases.
In support of his aforesaid stand that the word 8shall9 so reflected under Rule-5 (6) of the Rules in the present case be treated as 8may9, learned counsel for the Commission relied on a decision of the Hon9ble Apex Court reported in the case of PEC Limited Vs. Austbulk Shipping SDN. BHD., (2019) 11 SCC
620. Hon9ble Apex Court in Para 14 to 24 of the said judgment has held as follows:
14. Admittedly, an authenticated copy of the arbitration agreement was not placed on record by the Respondent at the time of filing of the application for enforcement. It is clear from the record that the Appellant placed the arbitration agreement along with its reply and thereafter the Respondent also filed the original arbitration agreement in the Court. The submission made by the Appellant is that production of the arbitration agreement at the time of filing of the application is mandatory, the non-compliance of which ought to have resulted in the dismissal of the application. The Appellant sought support for this submission from the word <shall= appearing in Section 47. We do not agree with the submission made by the learned counsel for the Appellant. We are of the opinion that the word <shall= appearing in Section 47 of the Act relating to the production of the evidence as specified in the provision at the time of application has to be read as <may=.Page 18 of 31
// 19 //
15. The word <shall= in its ordinary import is <obligatory=. But there are many decisions wherein the Courts under different situations construed the word to mean <may= . The scope and object of a Statute are the only guides in determining whether its provisions are directory or imperative. It is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
16. The word <shall=, though prima facie gives an impression of being of mandatory character, is required to be considered in light of the intention of the legislature by carefully attending to the scope of the Statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. The Court is required to keep in mind the mischief that would ensue by the construction of the word <shall= as <may=. Whether the public convenience would be subserved or whether public inconvenience or general inconvenience may ensue if it is held mandatory.
17. Section 46 of the Act makes a foreign award enforceable under the Act as binding on the persons between whom it is made. Article III of the New York Convention provides for recognition of arbitral awards by each contracting State as binding. Enforcement of the arbitral awards shall be in accordance with the rules and procedure of the territory where the award is sought to be enforced. Article III restricts imposition of substantial onerous conditions for enforcement of the arbitral awards. Article IV requires the party applying for recognition and enforcement to file an authenticated original award or duly certified copy thereof and the original agreement referred to in Article II or a duly certified copy thereof at the time of the application. It is relevant to mention that the work <shall= is employed in Article IV. Mohan Singh v. International Airport Authority of India, (1997) 9 SCC132 Ed. Para 17 corrected vide Official corrrigendun No.F3/Ed.BJ./79/2018 dated 15-1-2019 "5. Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
"IV. 1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in article II or a duly certified copy thereof.Page 19 of 31
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2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. <II.1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term <agreement in writing= shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
18. The object and purpose of the New York Convention as summarized by the Guide to Interpretation of the New York Convention issued by the International Council for Commercial Arbitration is as follows:
<The Convention is based on a pro-enforcement bias. It facilitates and safeguards the enforcement of arbitration agreements and arbitral awards and in doing so it serves international trade and commerce. It provides an additional measure of commercial security for parties entering into cross- border transactions=.
19. The object and purpose of the New York Convention is to facilitate the recognition of the arbitration agreement within its purview and the enforcement of the foreign arbitral awards. This object and purpose must, in the first place, be seen in the light of enhancing the effectiveness of the legal regime governing international commercial arbitration.
20. According to the ICCA Guide, the approach of the Court for enforcement should be having a strong pro enforcement bias, a pragmatic, flexible and non formalist approach. The Courts in several countries have been liberal in interpreting the formal requirements of Article IV of the New York Convention. Excessive formalism in the matter of enforcement of foreign awards has also been deprecated.
21. It is relevant to take note of the Preamble of the Act wherein it is mentioned that the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model law on International Commercial Arbitration (<Model Law=) in 1985 and that the Act is made taking into account the Model law and Rules. Chapter VIII of the Model Law governs the recognition and enforcement of Awards. Article 35 (2) 14 provides that the party applying for enforcement of the award shall supply the original award or a Page 20 of 31 // 21 // copy thereof. The Model Law does not lay down procedural details of recognition and enforcement, which are left to national procedudral laws and practices. However, Article 35(2) was amended in 2006 to liberalise formal requirements. Presentation of a copy of the arbitration agreement is no longer required under Article 35(2).
22. The object of the New York Convention is smooth and swift enforcement of foreign awards. Keeping in view the object and purpose of the New York Convention, we are of the view that the word <shall= in Section 47 of the Act has to be read as <may=. The opposite view that it is obligatory for a party to file the arbitration agreement or the original award or the evidence to prove that the award is a foreign award at the time of filing the application would have the effect of stultifying the enforcement proceedings. The object of the New York Convention will be defeated if the filing of the arbitration agreement at the time of filing the application is made compulsory. At the initial stage of filing of an application for enforcement, non-compliance of the production of the documents mentioned in Section 47 should not entail in dismissal of the application for enforcement of an award. The party seeking enforcement can be asked to cure the defect of non-filing of the arbitration agreement. The validity of the agreement is decided only at a later stage of the enforcement proceedings.
23. It is relevant to note that there would be no prejudice caused to the party objecting to the enforcement of the Award by the non-filing of the arbitration agreement at the time of the application for enforcement. In addition, the requirement of filing a copy of the arbitration agreement under the Model Law which was categorized as a formal requirement was dispensed with. Section 48 which refers to the grounds on which the enforcement of a foreign award may be refused does not include the non-filing of the documents mentioned in Section 47. An application for enforcement of the foreign award can be rejected only on the grounds specified in Section 48. This would also lend support to the view that the requirement to produce documents mentioned in Section 47 at the time of application was not intended to be mandatory.
24. Reading the word <shall= in Section 47 of the Act as <may= would only mean that a party applying for enforcement of the award need not necessarily produce before the Court a document mentioned therein <at the time of the application=. We make it clear that the said interpretation of the word <shall= as <may= is restricted only to the initial stage of the filing of the application and not thereafter. It is clear from the decisions relied upon by the counsel for the Appellant that Courts in certain jurisdictions have taken a strict view regarding the filing of the documents for enforcement of a foreign award. Courts in many other jurisdictions have taken the opposite view that the application for enforcement of the foreign awards does not warrant rejection for non-filing of the relevant documents including the award and the arbitral agreement. We need not adjudicate on this issue as the subject matter of this case does not relate to the non-filing of the arbitration agreement during the enforcement proceedings. There is no dispute that the arbitration agreement has been brought on record by both the parties.= Page 21 of 31 // 22 // 4.6. Mr. Behera also relied on another decision of the Hon9ble Apex Court in the case of Sureshkumar Lalitkumar Patel and others vs. State of Gujarat and others 2023 Live Law (S.C ) 137. Hon9ble Apex Court in paragraph 22 & 23 of the said judgment has held as follows=
22. We are dealing with the recruitment process by which the posts pertaining to each of the separate categories is to be filled up by only one mode, i.e., written examination. The cut-off marks have been fixed with a distinct clarification that it would not be tinkered with by facilitating anyone to be considered, if the candidate acquired lesser marks. There is a difference between qualification for making an application, and the eligibility to be determined in the process of selection. We are not concerned with the qualification for making an application in the present case, but rather an eligibility after the examination is conducted.
23. Another unique feature of the present case is that the Selection Committee has reduced the marks to facilitate the horizontal reservation by treating it as a vertical reservation. Admittedly, the rules do not provide for such reservation to be treated as a vertical one. Likewise, the rules do not fix any cut- off marks. An advertisement, made pursuant to a notification, binds the parties. It has got all the trappings of a statutory prescription, unless it becomes contrary to either a rule or an Act. A change, if any, can only be brought forth by way of an amendment and nothing else. Such an amendment even if it is permissible can be tested on the touchstone of Article 14 of the Constitution of India. It cannot be introduced to give an entry to a special reservation, in a case where a right becomes accrued to a candidate, under a policy decision reduced in the form of an advertisement, to be considered for a post in the absence of any eligible candidate from the horizontal category. 4.7. It is also contended that the Commission being the selecting authority, it is competent to fix the cut-off mark in order to assess the suitability of the candidates. Since the post in question is with regard to the post of Asst. Professor in Teacher Education, the Petitioner having not been able to secure the minimum 50% mark in the interview, he has no right to claim the benefit of such appointment. The Commission Page 22 of 31 // 23 // accordingly has rightly rejected the claim of the petitioner vide the impugned order which requires no interference. 4.8. Making all such submissions and relying on the decisions as cited (supra) learned counsel for the Opp. Party No.3 contended that in order to assess the suitability of the candidates, the Commission decided to fix the cut-off mark at 50% in the interview and since the Petitioner participated in the interview without raising any such objection, he cannot challenge the same after becoming unsuccessful in the selection process.
5. To the aforesaid submissions of the learned counsel appearing for the Commission, Mr. Pattanaik, learned counsel for the Petitioner made further submission so taken by him in the rejoinder affidavit.
5.1. It is contended that under Rule 5(6) of the 2020 Recruitment Rules, there is no such provision to fix any cut-off mark in the interview and the Commission suo motu evolved such a principle in the midst of the selection process and without issuing any notice to the shortlisted candidates prior to conducting the interview.
5.2. It is also contended that as provided under Clause-6(D) of the advertisement issued under Annexxure-1, selection for recruitment to the rank of Asst. Professor-Stage-1 shall be made Page 23 of 31 // 24 // on the basis of the result of the interview and the Commission shall prepare a subject wise merit list of successful candidates arranged in order of merit equal to the number of posts to be filled up and furnish the same to the Government. Since neither in the recruitment Rules nor in the advertisement, there was any such prescription fixing 50% cut-off mark to be obtained by a candidate in the interview, such a practice followed by the Commission in the midst of the selection process and that too without issuing any notice prior to conducting the interview, is not permissible and sustainable in the eye of law. 5.3. It is also contended that as admitted by the Opp. Party- Commission though there is provision to relax the cut-off mark in respect of the candidate belonging to PWD category in terms of the provisions contained under Clause-6 of the Resolution dt.25.02.2021 issued by the State Government in the Department of Social Security and Empowerment of persons with disability, but the Commission did not follow the resolution by relaxing the provision in respect of the Petitioner who belongs to PWD category.
5.4. It is also contended that since out of the 113 vacancies in the discipline of Teacher Education (Educational Studies), four posts were reserved for PWD candidates and only two candidates have been selected, the Petitioner is eligible and Page 24 of 31 // 25 // entitled to get the benefit of appointment as against the available two posts which has not yet been filled up. It is accordingly contended that the impugned order needs interference of this Court with passing of an appropriate order in the matter.
6. I have heard Mr. D. K. Pattanaik, learned counsel appearing for the Petitioner, Mr. A. Behera, learned Counsel for the Opp. Party-Commission and Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State-Opp. Parties.
On the consent of the learned counsel appearing for the parties with due exchange of the pleadings, the matter was heard at the stage of admission and disposed of by the present order.
7. This Court after going through the materials placed by the respective parties finds that the Commission issued advertisement vide Advertisement No.9 of 2021-22 under Annexure-1 inviting applications for recruitment of 385 posts of Asst. Professor (Teacher Education)-Stage-1. Out of the total vacancies so advertised, 113 posts were to be filled up in the discipline Teacher Education (Educational Studies). Since 4% of 385 posts is reserved for P.W.D candidates, taking into account the vacancies in the discipline of Teacher Education (Educational Studies) at 113, the same comes to 4. Page 25 of 31
// 26 // 7.1. As found from the record, the Petitioner made his application in the discipline Teacher Education (Educational Studies) as a PWD candidate. As found from the record as against 113 vacancies, 678 applications were received in total and the commission shortlisted the same to 382, for verification of documents. After such verification of documents, further 60 applications were rejected and 322 valid applications were found. Out of the said 322 valid applications, 291 candidates were shortlisted for the purpose of interview and the Commission issued the notice on 15.09.2022 fixing the date of interview of such shortlisted candidates under Annexure-10. After conducting the interview on the date fixed, Opp. Party No.3 vide notification dt.19.10.2022 under Annexure-11 series published the select list of 101 candidates in the discipline Asst. Professor (Teacher Education).
7.2. The Petitioner when was deprived from such selection and appointment, approached the Opp. Party No.3 for consideration of his case by making necessary application under Annexure-12 series and this Court in W.P.(C ) No.28997 of 2022 directed Opp. Party No.3 to take a decision on the Petitioner9s claim. As found from the impugned order, the claim of the Petitioner was rejected on the ground that the Petitioner has failed to secure the 50% cut-off mark, so fixed by the Page 26 of 31 // 27 // Commission and to be obtained by a candidate in the interview. It is not disputed by either of the parties that the selection to the post of Asst. Professor (Teacher Education) Stage-1 in different discipline is covered by the provisions contained under the Orissa Education Service (College Branch) Recruitment Rules, 2020. Under Rule-5 of the said Rules, the selection process to be followed by the Commission for direct recruitment in the rank of Asst. Professor, Stage-1 is provided. Rule-5 (2) of the Rules, provides the discretion on the Commission to select candidates for direct recruitment to the rank of Asst. Professor , Stage-1 on the basis of merit to be judged by the performance in interview of eligible shortlisted candidates. 7.3. As provided under Rule 5(6) of the Rules, on the basis of the result of the interview, the Commission shall prepare a subject wise merit list of successful candidates arranged in order of merit equal to the number of posts to be filled up and furnish the same to the Government. It is found that nowhere in the Recruitment Rules, nor in the advertisement issued under Annexure-1, the Commission at any point of time, prior to conducting the interview, pursuant to the notice issued under Annexure-10, fixed the cut-off mark at 50% with due intimation to the candidates who were called to attend the interview after the short listing.
Page 27 of 31
// 28 // 7.4. Placing reliance on the decisions cited by the learned counsel for the Petitioner as well as Opp. Party No.3, though this Court is of the view that the Commission in view of the provisions contained under Rule 5(2) of the Rules is competent to judge the merit of the candidates, taking into account the performance in the interview and to publish the merit list on the basis of such interview, but in the present case, the Commission at no point of time prior to conduct of the interview in terms of the notice issued under Annexure-10, fixed the cut-off mark with due intimation to all the candidates. In view of the decision of the Hon9ble Apex Court in the case of K. Manjushree as cited (supra), fixation of cut-off mark can only be done in advance i.e. prior to conduct of the interview. Since the principle laid down in the case of K. Manjushree has not been followed in the instant case, it is the view of this Court that rejection of the petitioner9s claim on the ground that the petitioner has failed to secure the cut-off mark is not sustainable in the eye of law. 7.5. However, since the selection process as contended by the learned counsel appearing for the Opp. Party No.3 has already been finalized, but taking into account the submissions of learned counsels appearing for the parties that as against the 4 posts meant for PWD candidates, two posts have not been filled up as yet, this Court placing reliance on the relaxation Page 28 of 31 // 29 // provisions contained in the Resolution dt.25.02.2021 issued by the State Government in the Department of Social Security and Empowerment of Persons with Disability and the decision of the Allahabad High Court in the case of Manoj Kumar Pandey & Others Vs. State of Uttar Pradesh & Another as well as the decision of the Hon9ble Apex Court in the case of Sanjay Singh & Another Vs. U.P. Public Service Commission, Allahabad & Another, (2007) 3 SCC 720, is of the view that the Commission needs to relax the provisions in the case of the Petitioner and provide him appointment as against the post of Asst. Professor (Teacher Education) Educational Studies, Stage-
1. This Court is also unable to accept the contention raised by the learned Counsel appearing for Opp. Party No.3 that some meritorious candidates are there above the Petitioner in PWD category as it is the Petitioner who has approached this Court, challenging the process of selection. Allahabad High Court in Paragraphs-2,9 & 10 of the order in the case of Manoj Kumar Pandey has held as follows:
"2. Learned counsel for the Petitioners has submitted that all the petitioners had appeared in the written examination and were also called for interview. The final select list was declared on 20th March, 1999 and even though the names of the Petitioners were not included in the main select list, but they are hopeful that their names would be included in the waiting list. The State Government had sent a requisition to the Commission to recommend the names of the candidates next in order of merit, as certain candidates did not join the post, but the Commission expressed its inability as the life of the waiting list had expired. This decision of the Commission was challenged by 11 candidates by filing a writ petition in this Court which was dismissed. The Supreme Court however Page 29 of 31 // 30 // granted relief to them by directing that they shall be considered by the Commission and the State Government, and would be appointed if otherwise found suitable and eligible. The said decision was rendered n Sheo Shyam & Ors. Vs. State of U.P. & Others., (2004) 2 ESC 256. The Supreme Court in the said decision held that the life of the waiting list which is of one year should be reckoned from the last date when the recommendation was made by the State Government. However, in view of the fact that after the decision of the Commission not to send the names to the State Government as the waiting list had expired, which decision was the subject matter of the writ petition before the High Court, the State Government itself had sent a requisition of 56 posts, including 11 posts to which the dispute related, and examinations were held subsequently on 9th November, 2003, the Supreme Court observed that the career of 11 candidates cannot be jeopardized, and therefore in these peculiar circumstances, it directed that the appointment shall be considered by the Commission and the State Government.
Xxx xxx xxx
9. The Hon'ble Apex Court while considering the case has granted relief only to those persons who had approached the Court and those were the persons who had filed the writ petition before this Court within one year from the date on which the last recommendation had been made. Therefore, those persons had approached the Court when the select list/merit list was alive. The case of the petitioners is quite distinguishable as they have approached this Court after more than two months of the expiry of the select list. Therefore, Petitioners cannot claim the relief which had been granted to other persons by the Hon'ble Apex Court.
10. If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, Petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.= 7.6. Similarly Hon9ble Apex Court in Paragraph-53 of the judgment in the case of Sanjay Singh has held as follows:
<53. However, in so far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case :
a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) No. 165/2005 belonging to the Category 'BC' have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. (C ) No.165/2005 is less than the marks of the selected candidates).Page 30 of 31
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b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. (For example, we find that petitioner Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates [347, 337, 336, 383 and 335] under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment). This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31st August, 2005= 7.7. This Court taking into account the entirety of the facts and placing reliance on the decision in the case of K. Manjushree and others decisions relied on by the learned counsel appearing for the Petitioner and the decision of the Allahabad High Court in the case of Manoj Kumar Pandey as well as the decision of the Hon9ble Apex Court in the case of Sanjay Singh & Another, directs Opp. Party No.3 to relax the cut-off mark to the case of the Petitioner and provide him appointment as against the post of Asst. Professor (Teacher Education) Educational Studies, Stage-I as against the available 2(two) number of vacancies in PWD category. This Court directs Opp. Party No.3 to complete the entire exercise within a period of 2(two) months from the date of receipt of the order. However, there shall be no order as to cost.
The Writ Petition is accordingly disposed of.
Signature Not Verified Digitally Signed (Biraja Prasanna Satapathy) Signed by: SANGITA PATRA Reason: authentication of order Judge Location: HighCourt of orissa, Cuttack Orissa High Court, Cuttack
Date: 03-Oct-2023 13:13:49 Dated the 3rd Oct.,2023/sangita Page 31 of 31