Orissa High Court
Santanu Kumar Budhia vs State Of Odisha And Ors. .... Opp. ... on 11 August, 2022
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.19303 of 2022
(In the matter of application under Articles 226 and 227 of the
Constitution of India, 1950).
Santanu Kumar Budhia .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Suryakanta Dwibedi, Adv.
Mr. S.P. Swain, Adv.
-versus-
For Opp. Parties : Mr. Ashok Ku. Parija, AG
Mr. Arnab Behera, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-02.08.2022
DATE OF JUDGMENT:-11.08.2022
Dr. S.K. Panigrahi, J.
1. The matter is taken up through hybrid mode.
2. Heard learned counsel for the petitioner and learned counsel for the Opposite Parties.
3. The present petition has been filed challenging the notice dated 22.07.2022 and the consequential publication of provisional selection list of SEBC category for the post of initial appointee teachers (TGT Arts). The petition calls into question the action of opposite parties in excluding the name of the Page 1 of 11 petitioner from the provisional selection list even though he had qualified the Computer Based Test (CBT) and was enlisted in the draft merit list.
4. Shorn of unnecessary details, the substratum of matter presented before this court remain that pursuant to advertisement dated 23.12.2021, the Opposite Party No.2 invited online applications for recruitment of appointee teachers in Govt. Secondary schools. The selection for the above-mentioned posts was to be made through Computer Based Test (CBT) in selected test centers in Odisha.
5. The averments made in the writ petition are that the petitioner applied for the post of TGT Arts and appeared in the CBT as per the scheduled date. On the basis of his performance in the CBT, the name of the petitioner was enlisted in the draft merit list dated 19.05.2022.
6. The certificates and documents of the petitioner were verified at the district level after publication of the draft merit list. Pursuant to Notice No. 18127 dated 22.07.2022, a provisional select list was published by the opposite parties wherein the petitioner's name was not enlisted under the SEBC category.
7. Learned counsel for the petitioner submitted that the candidates enlisted in the draft merit list under the SEBC with PWD category had secured less marks in the CBT and their names were enlisted much below in the serial number as Page 2 of 11 compared to the petitioner. In spite of this, their names were enlisted in the provisional select list and the petitioner's case was not considered.
8. It is contended by the learned counsel for the petitioner that the opposite parties with an oblique motive didn't enlist the name of the petitioner in the provisional select list even though his certificates and documents were verified by concerned authorities. Accordingly, the opposite parties have not acted in consonance with law and procedure while discharging public duties and hence, the provisional select list is not sustainable in the eyes of law and liable to be quashed/modified.
9. Paragraph No.9 of the said advertisement dated 23.12.2021 which provide for method of selection to the post of initial appointee teachers read as follows:
"9. Method of Selection: a) The selection will be made on the basis of result of Computer Based Competitive Examination. The Scheme and Syllabus of Examination is placed at Appendix-C. In case the examination for any posts is held in multiple batches normalization of considered.
b) Candidates will be selected on the basis of their performance In Computer Based Test (CBT). The appropriate Committee constituted by Government reserves the right to decide the cut off mark in CBT for short listing. Provided that in case normalization of score is done, the normalized score obtained by the candidate shall be taken in to consideration.
c) Rank list of the candidates qualifying in the Computer Based Test shall be prepared taking in order of marks Page 3 of 11 secured or normalized score secured by the candidates in the examination. In case of two or more candidates secure the same marks/ score the candidate older in age will be placed above in the rank.
d) Candidates shortlisted from the Rank list shall be called to get their documents verified at District level. The State Selection Committee shall have the right to decide the criteria for short listing. The district mentioned in the permanent address in the application form shall be taken as the district in which the documents of a candidate are to be verified. Candidates are required to mention the permanent address with district carefully because no change of this address will be allowed after submission of application.
(e) The eligibility of shortlisted candidates shall be determined through verification of all relevant documents in support of age, qualification and other eligibility conditions laid down in the advertisement.
(g) The Draft Common List for the State finalized after determination of eligibility as in para 9(e) shall be treated as Draft merit list and this along with the list of ineligible candidates shall be published for inviting objections.
After disposal of objections and necessary corrections, the State Common Merit List will be finalized.
(i) Inclusion of the name of a candidate in the Merit List/Select List shall confer no right on the candidate to engagement unless Government or the State Selection Committee or the Appointing Authority are satisfied after such inquiry or re-verification of documents, as may be considered necessary, that a candidate is suitable in all respects for engagement to the service."
10. On perusal of the abovementioned condition of the advertisement, this court is of the view that the marks obtained by the candidates in the CBT was not the sole basis Page 4 of 11 for selection. Apart from the marks obtained in the CBT, there were various other eligibility conditions that were needed to be fulfilled in order to be shortlisted in the provisional select list. It would be relevant to note herein that the advertisement dated 23.12.2021 vested power in the appropriate committee constituted by the Government to decide the cut-off mark in CBT for short-listing. Therefore, the successful candidates who found their names in the draft merit list were the ones who cleared the cut-off and qualified for the next phase of the selection process. It is pertinent to mention that the candidates had no knowledge of their scores in the CBT examination and were only notified if they had qualified for the next phase of the selection process vide Draft Merit List dated 19.05.2022. In this light, the petitioner's claim that candidates securing less marks than him were preferred for the next phase of the selection process is untenable and ill-founded.
11.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. Page 5 of 11
12. Inclusion of the name of a candidate in the merit/select list is at best a condition of eligibility for the purpose of appointment. A candidate in the merit/select, list though has no vested right to be appointed, he has a right to be considered for appointment and the State does not have the license of acting in an arbitrary manner. The appointing authority can neither ignore the list nor decline to make appointment on his whims.
13. In the case of Commissioner of Police and Anr v. Umesh Kumar1, the Supreme Court was presented with a situation where the candidates had participated in the selection process to the 2013 batch of Constables (Executive) - Male in Delhi Police. They were declared to have been successful in the first result. The results were revised later and they were ousted. The candidates approached the Central Administrative Tribunal which dismissed their OA. This order was further challenged before the Delhi High Court, which directed to allow for their appointment. In the consequent appeal, the Supreme Court held that High Court manifestly erred in issuing the writ of mandamus to the appellants to appoint the respondents as mere inclusion of candidate in a selection list does not confer a vested right to appointment. The recruitment process was yet to be completed and no candidate can be 1Civil Appeal No. 3334 of 2020 Page 6 of 11 given an undeserved advantage over others by application of an erroneous key.
14. In the case of Punjab SEB vs. Malkiat Singh2, the Supreme Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:
"4. ...the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India3"
15. The Supreme Court in the case of State of Orissa v. Rajkishore Nanda4 observed hereasunder:
"A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate."
16. The instant case is required to be examined in view of the aforesaid settled legal proposition. Moreover, Paragraph 9(i) 2Appeal (civil) 6116 of 1999 31991 SCC (3)47 4(2010) 6 SCC 777 Page 7 of 11 prescribes that the Inclusion of the name of a candidate in the Merit List/Select List shall confer no right on the candidate to engagement unless Government or the State Selection Committee or the Appointing Authority are satisfied after such inquiry or re-verification of documents, as may be considered necessary, that a candidate is suitable in all respects for engagement to the service. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. Therefore, merely because a candidate is included in the merit list, no indefeasible right would accrue to him to claim appointment or qualification to further stages in the selection process and it is for the employer to utilize the merit list partially or fully.
17. In the case of Moon Raj Bahadur v. ONGC5, the Tripura High Court dismissed a petition where it was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2. The Court was of the view that the petitioner can have no grievance for his non-selection especially because the eligibility criteria fixed by the respondent No.2 was clear and categoric and it was clear that the marks obtained by a candidate in the CBT written examination would constitute 5WP(C) No.677 of 2020 Page 8 of 11 85% of the marks for consideration and the marks obtained in the qualifying examination would constitute 15% of the marks, therefore, totaling 100%. Resultantly, although respondent 3 had received 66.10 marks in CBT written examination, he received higher marks i.e. 10 marks due to the qualifying examination and the petitioner received 5 marks on account of having obtained 44% marks in his Class-XII examination.
18. This Court is unable to accept the submission of learned counsel for the petitioner as the inclusion of candidate's name in the Draft Merit List doesn't grant him an indefeasible right to be selected or engaged as Initial Appointee Teacher. Being called for document verification was no guarantee for appointment. The engagement to the concerned post was dependent on the Final Select List which would be prepared for each reservation category on the basis of eligibility, genuineness of documents, merit and availability of posts in that category.
19. Also, even if it were assumed that the Opposite Parties were proceeding in a manner wholly contrary to law, that did not happen overnight. The panels containing names of successful candidates were declared over a period of time. If panel after panel were being declared with the roll numbers of the successful candidates instead of in accordance with their inter se merit position, nothing prevented the petitioners to raise a Page 9 of 11 challenge to the procedure adopted by the Opposite Party at the appropriate time and seek judicial intervention. This court is conscious that the petitioner being a mere aspirant for appointment cannot be expected to knock the doors of the Court at each and every stage of the process; however, it cannot be lost sight of the fact that the petitioner waited for all the panels to be declared and then approached the Court. It can reasonably be inferred from the facts and circumstances that the petitioner acquiesced in the procedure adopted by the Opposite Parties and turned around when they were not offered appointment.
20. Before parting, this Court wishes to place on record its sympathy for the petitioner. The petitioner has been engaged in this legal battle expecting public employment for far too long. Such expectation arose because of the peculiar procedure adopted by the Opposite Party in publishing panel after panel with names and roll numbers of the successful candidates. Since the recruitment cell of the Opposite Parties is entrusted with the task of recruitment, more professionalism and a greater degree of transparency in such task is the need of the hour. If indeed the merit list and provisional select list were published prior to document verification, much of the anxiety and agony of aspirants like the petitioner may not have arisen. This Court hopes and trusts that in future, while conducting Page 10 of 11 recruitment processes, the Opposite Parties would conduct the selection process with more professionalism and greater transparency, and strictly abide by the terms of the advertisement/resolution issued.
21. In the light of above discussions and guided by the precedents narrated hereinabove, this Court is of the opinion that the appearance of the name of a candidate in merit/select list does not confer any right to be selected and the unsuccessful candidates cannot claim that they have been given a hostile discrimination. Judicial review can be exercised only if any unconstitutionality or violation of statutory rules are established, and it cannot be exercised to undo a work done by a competent authority.
22.As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, this Court, hereby dismisses this Writ Petition. There shall be no order as to costs.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 11th of August, 2022/B. Jhankar Page 11 of 11