Orissa High Court
An Application Under Article 226 And 227 ... vs State Of Odisha And Others .... Opposite ... on 27 September, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31327 of 2022
An application under Article 226 and 227 of the
Constitution of India.
Kartik Senapati .... Petitioner
-Versus-
State of Odisha and others .... Opposite Parties
For Petitioner : M/s. D.K. Mohapatra,
R. Ch. Das and M. Mishra
For Opp. Parties : Mr. S. Das, A.G.A.
Ms. Sumitra Mohanty,
Advocate for O.P. Nos.2 and 3
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 10.08.2023 : Date of Judgment : 27.09.2023 A.K. Mohapatra, J.
1. The above named Petitioner, who had participated in the recruitment test conducted by the Odisha Public Service Commission (hereafter referred to 'OPSC') to the post of Odisha Civil Services-2020 under the Ex-serviceman category, has approached this Court by filing the present writ application with a // 2 // prayer to quash the notice under Annexure-9 to the writ application dated 07.10.2022 and for a further direction to the Opposite Parties to consider the candidature of the Petitioner for the above- mentioned examination and declare him successful in the said examination and accordingly grant consequential benefits to the Petitioner.
2. The factual backdrop of the writ application, in a narrow compass, is that, after qualifying in +2 Examination the Petitioner joined the Indian Navy on 03.02.2006 for a tenure of 15 years. While working with the Indian Navy, the Petitioner opted for discharge from service on the completion of 15 years of service in the Indian Navy in the year 2019. As per the practice and regulations of the Indian Navy, the Petitioner was required to give two years prior notice for not continuing in service for any extended tenure beyond the initial 15 years of service. In course of his service in the Indian Navy, the Petitioner underwent special advanced training and as such, was required to serve for three years w.e.f. 01.05.2018 after completion of training.
3. After obtaining the NOC on 28.09.2020 wherein it has been specifically stipulated that the date of discharge of the Petitioner // 3 // would be 30.04.2021. The Petitioner was interested in joining in a civil organization against the civil post. At that point of time, the petitioner came across the Advertisement No.7 of 2020-2021 published by the Odisha Public Service Commission inviting applications for the OCS Examination 2020. Accordingly, the petitioner submitted his online application on 28.01.2021 under the Ex-serviceman category along with NOC dated 28.09.2020 (like other Government servants). Last date for receipt of said application was notified to be 18.02.2021, which was later extended to 02.03.2021.
4. While the recruitment process was ongoing, the petitioner was discharged from service w.e.f. 30.04.2021, as has been indicated in the NOC dated 28.09.2020. By the time, the petitioner submitted his application he had acquired a M.A. qualification. It is needless to mention here that the petitioner was discharged from service on expiry of 128 days from the last date of application, which is much prior to the recruitment test that was conducted by OPSC. Since the application of the petitioner was complete in all respects and the same was submitted in time, OPSC accepted said online application and accordingly allowed the petitioner to appear in the Preliminary // 4 // Examination of the OCS 2020. Consequently, the petitioner appeared for the Preliminary Examination and has secured 46% marks, as a result of which he was declared successful and was given intimation to appear for the OCS Main Examination.
5. Pursuant to the intimation issued by OPSC, the petitioner also appeared in the Main Examination of the OCS Examination 2020, and secured 50% of the marks therein and accordingly he was declared successful in the Main Examination as well. After successfully clearing both the Preliminary Examination and Main Examination of Odisha Civil Services 2020, the petitioner was called upon to participate in the Personality Test, which was held on 23.09.2022. In the Personality Test, the petitioner secured 52% of the marks and received an intimation from OPSC that the he had successfully cleared said Personality Test and was therefore called upon for document verification. During the document verification process, the petitioner submitted his original Discharge Certificate dated 30.04.2021 under Annexure-8 to the writ application, which was issued by the Indian Navy in the prescribed Naval format (INS272 REVIV) and the original NOC dated 28.09.2020 (like other Government servants). However, before appearing in the Personality // 5 // Test, the petitioner was compelled to sign a pre-typed undertaking dated 23.09.2022. Finally, the Opposite Parties have rejected the candidature of the petitioner vide order dated 07.10.2022 under Annexure-9 to the writ application on the ground that, the discharge certificate was issued after the last date of submission of online application form. Challenging said rejection order dated 07.10.2022 under Annexure-9, the petitioner has approached this Court by filing the present writ application.
6. A counter affidavit has been filed on behalf of the Opposite Party Nos. 2 and 3. A careful scrutiny of the counter affidavit reveals that the Opposite Party Nos.2 and 3 have admitted the facts that the petitioner had participated in the OCS, 2020 examination and he was assigned Roll No.312038. He was finally short-listed for Personality Test of OCS 2020 under UR Ex-serviceman category. However, candidature of the petitioner was subsequently rejected under Annexure-9 to the writ application. In the said counter affidavit it has been stated by the Opposite Party Nos.2 and 3 that the last date of submission of online application form was on 02.03.2021. However, the petitioner had submitted Ex-serviceman Discharge Certificate which was issued on 30.04.2021. In such view // 6 // of the matter, it has been stated in the counter affidavit that the submission of the said discharge certificate by the petitioner is contrary to Note-2 to sub-para (k) of Paragraph-10 of the advertisement. The aforesaid provision of the advertisement prescribes that the Discharge Certificate must have been issued by the competent authority within the last date fixed for submission of online application form. However, in the instant case, the Discharge Certificate was issued after the cut-off date fixed for submission of online application form.
7. In the said counter affidavit, the Opposite Party Nos. 2 and 3 have already led emphasis on the undertaking by the petitioner before the OPSC. It has been stated that in the said undertaking, the petitioner had promised that his candidature is subject to the final decision of the Commission with regard to his Ex-serviceman status. Based on such undertaking, the petitioner was allowed to participate in the Personality Test and for document verification. After verification of documents, the candidature of the petitioner has been rejected on 07.10.2022.
8. The counter affidavit filed by the Opposite Party Nos. 2 and 3, further reveals that the representation of the petitioner under // 7 // Annexure-10 has already been disposed of and the petitioner has been communicated the result thereof. With regard to the recommendation of Rajya Sainika Board under Annexure-12, it has been stated that the same has already been considered by the Commission and has also been rejected. It has also been stated in the counter affidavit that the petitioner had specifically applied under Ex-serviceman category. However, his candidature was not considered under the Ex-serviceman category on the ground that the NOC (No Objection Certificate) produced by the petitioner clearly reveals that he was due to be released from the Indian Navy on 30.04.2021 and as such, the answering Opposite Parties have stated that the petitioner will be eligible to take any civil employment/assignment only after 30.04.2021. On the aforesaid grounds, it has been prayed in the counter affidavit that the writ petition is devoid of merit and hence the same should be dismissed.
9. Learned counsel for the petitioner has filed a rejoinder affidavit to the counter affidavit filed by the Opposite Party Nos. 2 and 3 explaining the Undertaking alleged to have been given by the petitioner. It has been stated in the rejoinder that the Undertaking was taken under compulsion in a pre-typed form and at that time, // 8 // the petitioner was given an impression that the production of such an Undertaking is a condition precedent to appear for Personality Test. Since the petitioner neither had any other option nor any time to object to such undertaking, and, he was required to appear in the Personality Test to complete the recruitment, the petitioner had to sign such undertaking on a pre-typed form under compulsion of the Opposite Parties. In other words, it has been stated on behalf of the petitioner that such undertaking is not voluntary and that the consent of the petitioner was obtained under compulsion.
10. The rejoinder affidavit further reveals that the petitioner had submitted the NOC dated 28.09.2020 wherein it was specifically mentioned that the petitioner shall be discharged from service w.e.f. 30.04.2021 as per the Indian Navy Rules and Regulations. Therefore, the petitioner was entitled to get a discharge certificate only after he was discharged from service. The aforesaid facts were well within the knowledge of the Opposite Parties. Knowing the same fully well, the Opposite Parties have accepted the online application form of the petitioner and accordingly, permitted the petitioner to participate in both the Preliminary as well as Main examination in Odisha Civil Service Examination 2020. Therefore, // 9 // the Opposite Parties are estopped to turn back and say that the petitioner was not eligible to be considered under Ex-serviceman category for some technical reasons. The Discharge Certificate dated 30.04.2021, which was obtained subsequently has been produced before OPSC at the time of verification of the documents on 23.09.2022. Thus, it has been stated on behalf of the petitioner that the rejection of the petitioner's candidature is highly illegal and arbitrary. On the contrary the Opposite Parties should have accepted the Discharge Certificate of the petitioner as is being done in the case of other similarly situated Government employees and the petitioner's candidature for the OCS Examination 2020 should not have been rejected.
11. Heard Mr. D.K. Mohapatra, learned counsel appearing for the petitioner, Ms. Sumitra Mohanty, learned counsel appearing for the Opposite Party Nos. 2 and 3 and Mr. S. Das, learned Additional Government Advocate for the Opposite Party No.1. Perused the pleadings of the parties as well as materials on record.
12. Mr. D.K. Mohapatra, learned counsel appearing for the petitioner, at the outset submitted that the rejection of petitioner's candidature vide order dated 07.10.2022 under Annexure-9 is highly // 10 // illegal, arbitrary and discriminatory. He further contended that the Opposite Parties having accepted the online application of the petitioner and the NOC dated 28.09.2020 issued by the Indian Navy and thereafter permitting the petitioner to participate in the recruitment process, are not justified in rejecting the candidature of the petitioner under Ex-serviceman category. In course of his argument, Mr. Mohapatra, learned counsel appearing for the petitioner referred to (Odisha Civil Service Combined competitive) Rule, 1991. He further contended that none of the rules framed for the purpose prescribes that the candidate belonging to the category of Ex-Servicemen is required to furnish his Certificate of Discharge from service to be eligible for a civil post. In the present case, the Petitioner was discharged w.e.f. 30.04.2021, i.e., well before the completion of the recruitment process.
13. Learned counsel for the Petitioner further contended that the application of the Petitioner with NOC, which clearly reveals that the date of discharge from service, was accepted by the Opposite Parties pursuant to the advertisement. Furthermore, Opposite Parties upon due scrutiny not only accepted the application form of the Petitioner, but also the Petitioner was allowed to participate in two // 11 // stages of the recruitment process and in both the examination, the Petitioner was declared successful. Finally, the Petitioner was called upon to attend personality test and there also the Petitioner has succeeded. Up to the final stage of selection, no objection whatsoever was raised by the recruiting agency with regard to the candidature of the Petitioner and the Petitioner was allowed to participate in the recruitment process till end. Finally, the candidature of the Petitioner was rejected by misinterpreting the provisions prescribed for the purpose. Therefore, it was argued by Mr. Mohapatra, learned counsel for the Petitioner that the Opposite Parties have committed a glaring illegality in rejecting the candidature of the Petitioner at the final stage of selection on a very hyper-technical ground and the same is not supported by any legal authority.
14. Next, drawing attention of this Court to the rules, learned counsel for the Petitioner demonstrated the procedure required to be followed so far Ex-Servicemen candidates are concerned. Referring to Rule-2(b) of the Odisha Ex-Servicemen (Recruitment to the State Civil Service), Rules, 1985, it was submitted before this Court that the word 'Ex-Servicemen' means that a person must have served in // 12 // any post in the armed forces. Moreover Rule-2(b)(ii) provides that a person to be called Ex-Servicemen in the armed forces, he must have served in the Union for a continuous period not less than six months. Further, referring to Clause-2(b)(ii), it was submitted that the same provides that an Ex-Servicemen must have served not less than six months for completing the period of service which is required to be entitled to be released or transferred to the reserve. Similarly, Rule-4 of the aforesaid Rule, 1985, provides that 3% of the vacancy arising in a year in each of the category shall be reserved to be filled up by candidates belonging to Ex-Servicemen category. Similarly, the document under Annexure-3 and 4 provides that an Ex-Servicemen who has rendered 5 years of service shall be released on completion of assignment within one year. Learned counsel for the Petitioner referring to notice dated 07.06.2019 of OPSC further submitted that the candidates who were not released from service within six months from last date of submission of online application form, their candidature is liable to be rejected by OPSC.
15. Similarly, referring to advertisement dated 21.12.2019 of the Odisha Staff Selection Commission under Annexure-6 to the writ // 13 // application, learned counsel for the Petitioner submitted that, para- 5(a) of the said advertisement provides that, persons of the Defence Forces having more than six months to retire/discharge from the forces as on the last date of submission of online application are not eligible to apply as Ex-Servicemen for the post and the persons of armed forces, who are going to retire within six months from the last date of online application are allowed to apply by obtaining "No Objection Certificate". The advertisement dated 23.12.2021 under Annexure-7 issued by the Odisha State Staff Selection Commission also provides that Ex-Servicemen going to retire within six months from the last date of submission of application can apply for the post.
16. Mr. Mohapatra, learned counsel for the Petitioner referring to "Other Eligibility Conditions" under Clause-5(iii) of the Advertisement No.07 of 2020-21 relating Odisha Civil Service Examination, 2020, has submitted before this Court that Government Servants, whether temporary or permanent, are eligible to apply for the post, provided that, they possess requisite qualifications and are within the prescribed age limit, failing which their candidature shall be summarily rejected. Furthermore, the same // 14 // also provides that such candidates are required to obtain NOC from their competent authority for submission at the time of document verification and that they must inform their respective head of departments in writing regarding the submission of said documents for the recruitment. Thus, learned counsel for the Petitioner submitted that Opposite Parties have not acted in a fair, reasonable, and non-discriminatory manner, so far as the present Petitioner is concerned. He further contended that when Government servants are allowed to submit their NOC at the stage of document verification, the Opposite Party, recruiting agency, should not have taken a different stand in the case of the Petitioner and, accordingly, they should have accepted the discharge certificate submitted by the Petitioner at the stage of document verification.
17. Moreover, the advertisement in question at Point No.9 under the heading 'Important Points' at Clause-(XII) provides that online application submitted to OPSC, if found to be incomplete in any respect, are liable to rejection without entertaining any correspondence with the applicants on that score. Therefore, learned counsel for the Petitioner submitted that it is presumed that the application of the Petitioner was complete in all respect, and as // 15 // such, he was allowed to participate in the recruitment process till the stage of document verification. With regard to documents to be submitted as per Clause-10 under the heading "Certificates/Documents to be Attached", learned counsel for the Petitioner further contended that the candidates, who will qualify for the main written examination are required to submit true copies of the prescribed documents duly self-certified. Further, it provides that the candidates must not attach the original certificates to their hard copy of online application. Only those who are called for personality test or interview will be required to bring with them the original certificates on the date of verification as decided by the Commission, failing which, he/she shall not be allowed to appear at the personality test or interview. So far the present Petitioner is concerned, the learned counsel for the Petitioner referred to the Discharge Certificate under Clause-10(f) of the advertisement. He further submitted that so far as Ex-Servicemen are concerned, they are required to produce Discharge Certificates issued by the commanding officers of the unit last served.
18. Ms. Sumitra Mohanty, learned counsel appearing for the Opposite Party No.2 and 3, on the other hand, contended that // 16 // initially the Petitioner was shortlisted for personality test of OCS Examination, 2020 under the UR Ex-Servicemen Category. However, his candidature has been rejected by the Commission under Annexure-9 on the ground that Discharge Certificate issued after the last date of submission of online application form. Referring to the Advertisement No.7 of 2020-21 for OCS Examination, 2020, learned counsel for the Opposite Party No.2 and 3 submitted that in the said advertisement under Clause-9(XII), it has been specifically provided that online applications submitted to OPSC, if found to be incomplete in any respect, are liable to rejection without entertaining any correspondence with the applicants on that score. Accordingly, it was submitted that it was well within the authority and jurisdiction of the Commission to reject the application as well as the candidature of the Petitioner as the online application was found incomplete.
19. Ms. Mohanty, learned counsel appearing for the Opposite Party No.2 and 3 further submitted that under Clause-10(f) of the advertisement, it has been specifically provided that the Discharge Certificate issued by the Commanding Officer of the Unit last served; Ex-Servicemen candidates must submit an Affidavit that he // 17 // has not been appointed against any civil post after Military Service. Referring to Note-2 of Clause-10 appended to the aforesaid Advertisement, she submitted before this Court that Degree Certificate, Caste Certificate, Odia Test Pass Certificate, Discharge Certificate of Ex-servicemen and Identity Card issued from Director of Sports & Permanent Disability Certificate of Persons with Disabilities must have been issued by the competent authority within the last date fixed for submission of online application forms.
20. So far the present Petitioner is concerned, she further contended that the Discharge Certificate was issued after the last date for submission of online application form. Therefore, the Commission in exercise of its power under Clause-11(d) & (j) has every authority to reject the application on the grounds mentioned in sub-clause(d) and sub-clause(j) of Clause-11 of the advertisement. In such view of the matter, learned counsel appearing for the Commission submitted that no fault can be found with the action of the Commission in rejecting the candidature as well as application of the Petitioner under Annexure-9 to the writ petition. Accordingly, she further submitted that the present writ // 18 // petition is devoid of merit and, as such, the same should be dismissed.
21. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their respective submission as well as on a detailed scrutiny of the materials on record, this Court is of the opinion that to adjudicate the dispute involved in the present writ petition, this Court is required to examine the relevant clauses in the advertisement with regard to submission of Discharge Certificate as well as the validity of the exercise of power by the Commission under Clause-11(d) & (j) of the advertisement to reject the application of the Petitioner.
22. Before taking a plunge into the factual background of the case for determination of the issues involved, it is imperative to know about the relevant provisions contained in the advertisement. With regard to Discharge Certificate, this Court on a careful scrutiny observed that two different standards have been laid down, one for Government servants whether temporary or permanent and the other for Ex-Servicemen. So far the Government Servants are concerned, whether they are temporary or permanent, they are eligible to apply under the advertisement, provided they possess the requisite // 19 // qualifications and are within the prescribed age limit as provided under para-3 of the Advertisement, failing which their candidature shall be summarily rejected. It is also provided that all such candidates are required to obtain an NOC (No Objection Certificate) from their competent authority for submission at the time of document verification. They must inform their respective Heads of Departments in writing regarding submission of their application for this recruitment.
23. So far the Ex-Servicemen are concerned, on perusal of the advertisement, it appears that 3 posts were reserved under the Ex-Servicemen Category. All applicants were required to submit their online application form along with photocopies of relevant documents as prescribed under para-10 of the advertisement. Moreover, Clause-5(v) provides only those candidates, who possess the requisite qualification and fulfil other eligibility conditions by the closing date of submission of registered online application forms will be considered eligible. Therefore, there is no dispute that the Petitioner was found eligible after submission of the online application form. Accordingly, he was allowed to participate in the recruitment test.
// 20 //
24. Furthermore, the fact with regard to issuance of the Discharge Certificate was also disclosed in his application form, i.e., there is no discrepancy in the information provided in the application form with that of the certificate which was produced later on. Clause-10 of the advertisement specifically provides that only those candidates who will be qualifying in the main written examination are required to submit the original certificates, i.e., only those who are called for personality test or interview will be required to bring with them the original certificate on the day of verification as would be decided by the Commission, failing which such candidates shall not be allowed to appear at the personality test or interview. It has also been clarified that if a candidate fails to furnish any of the original certificates and documents of the attested copies of the documents submitted with the application for verification by him/her, for verification on the date fixed by the Commission, his/her candidature will be rejected. It is relevant to note here that it is not the case of the Commission that the Petitioner did not produce the original copies of the documents, photocopies whereof were filed by the Petitioner at the time of submission of online application form. Therefore, the aforesaid ground of rejection is not applicable // 21 // to the Petitioner's case. Moreover, the Petitioner had submitted an affidavit before the Commission indicating therein that he had not been appointed against any civil post after military service.
25. The next question that falls for consideration by this Court is with regard to submission of the Discharge Certificate by the Petitioner. In this regard, Note No.2 appended to Clause-10 of the advertisement specifically provides that the Discharge Certificate of Ex-Servicemen must have been issued by the competent authority within the last date fixed for submission of online application form. In other words the Discharge Certificate, so far the present Petitioner is concerned, it should have been issued by the competent authority prior to the last date fixed for submission of online application form. On a careful examination of the rejection letter under Annexure-9, it appears that the candidature of the Petitioner has been rejected only on the ground that the Discharge Certificate has been issued by the Commanding Officer after the last date of submission of online application form.
26. It is not disputed that the Petitioner was serving as CPO in the Indian Navy. As per the relevant law/rules applicable to the Naval Personnel, an officer who intends to take voluntary retirement // 22 // prematurely has to mandatorily give a six months' notice. Accordingly, the Petitioner applied for pre-mature retirement with a request to issue a Discharge Certificate. After applying for voluntary retirement from service, the Petitioner was interested in an employment against the civil post. When he came across the advertisement of OCS Examination 2020, he had applied for the post by submitting his online application form thereby providing all relevant and valid information. It is not a case where the Petitioner has suppressed any material information. Furthermore, in view of the conditions in the advertisement, the Petitioner could have applied for appointment under the Notification of OCS Examination 2020 provided he has retired from service six months prior to the date of publication of the advertisement. Before submitting his application, the Petitioner had obtained the No Objection Certificate on 28th September, 2020 as per relevant rules and laws applicable to the Indian Navy.
27. The service of the Petitioner was to come to an end w.e.f. 30.04.2021 and in fact on that date only a Discharge Certificate was issued in favour of the Petitioner. Accordingly, the Petitioner pursuant to the notice of the Commission appeared on the date fixed // 23 // for personality test and document verification on 23rd September, 2023 along with a copy of the Discharge Certificate dated 30.04.2021. However, most unfortunately the Commission rejected the candidature of the Petitioner although he was validly selected vide their Notice dated 7th October, 2022. Taking into consideration the aforesaid facts, this Court is unable to comprehend the scenario i.e. as to how the OPSC under Clause-5(ii) of the advertisement has made it mandatory that the candidate who has applied under Ex- Servicemen Category must produce the Discharge Certificate which was issued within six months from the last dare of submission of application form. At the same time, they have rejected the same on the ground that the Discharge Certificate was issued after the last date for submission of the application form. The aforesaid time restriction of six months is probably with the intention to have a close proximity of the date of retirement/discharge to the date of engagement against a civil post.
28. On a careful examination of the factual background, it appears that the Petitioner had already made his intention clear by applying for NOC from the Naval Authorities for recruitment against a civil post and, therefore, his service with the Indian Navy was to come to // 24 // an end w.e.f. 30th April, 2021, i.e., much prior to the finalization of the recruitment process. Moreover, the authorities accepting such NOC issued by the Naval Authorities permitted the Petitioner to participate in the recruitment process till the final stage. The Petitioner who had participated in the recruitment process, with all sincerity, succeeded at every stage of the selection only to find at the final stage that his candidature has been rejected illegally and arbitrarily by the authorities mercilessly on the ground that the Discharge Certificate has been issued after the last date of submission of the application form. In my considered view such an action taken by the Commission is highly unfair and unjust, unreasonable, and above all discriminatory.
29. Coming back to the allegation made by the learned counsel appearing for the Petitioner, it was emphatically contended by Mr. Mohapatra that the Petitioner has been seriously discriminated against. In the aforesaid context, this Court examined the provisions with regard to the Government employees who have applied for the civil posts under OCS Examination 2020. On perusal of the conditions in the advertisement, it appears that the Government servants have been given the liberty to produce the No Objection // 25 // Certificate under Clause-5(iii) of the advertisement, from their competent authority, at the time of document verification. Therefore, while continuing in service, with a No Objection Certificate from a competitive authority, they can participate in the recruitment test for selection and appointment to the post under the advertisement. However, a different standard has been adopted, so far Ex-Servicemen candidates are concerned. While giving liberty to the Government servants to produce the No Objection Certificate at the time of document verification, the advertisement provides that the Discharge Certificate must have been issued prior to the last date for submission of the application. On a careful consideration of the aforesaid factual aspects, this Court is of the considered view that the clause providing for submission of the Discharge Certificate under Note-2 to Clause-10 of the advertisement, i.e., within the last date fixed for submission of application form is highly arbitrary and discriminatory.
30. Moreover, the aforesaid provision has been incorporated in the shape of a Note to Clause-10 of the advertisement. In contra distinction to the aforesaid Note, Clause-10(f), which specifically deals with Discharge Certificate provides that the Discharge // 26 // Certificate issued by the Commanding Officer of the Unit last served shall be furnished by the candidate for verification on the date fixed by the Commission, failing which the candidature shall be rejected. In addition to the above, the said clause also provides that the Ex-Servicemen candidate must submit an affidavit that he has not been appointed against any civil post after military service. In the aforesaid context, this Court is of the considered view that Note-2 which has been appended to Clause-10 of the advertisement has to be read and construed harmoniously with Clause-10(f) which deals with the Discharge Certificate. Therefore, the provision contained in the Note cannot override the Clause-10(f) of the advertisement. Taking into consideration the aforesaid analysis, this Court is of the considered view that the Note-2 appended to Clause- 10 of the advertisement is highly discriminatory, so far the Ex- Servicemen are concerned. Accordingly the portion of Note-2 which is in conflict with Clause 10(f) is required to be read down to bring the same in conformity with the substance of Clause 10(f).
31. The next question that was raised before this Court is with regard to the authority of the Commission to reject the application of the Petitioner. In the said context, it is pertinent to refer to // 27 // Clause-11 of the advertisement. The said Clause-11 provides the ground for rejection of applications by the Commission. Sub- clause(d) provides a ground for rejection of application on the ground of non-furnishing of copies of Certificate/documents as provided under para-10 of the Advertisement. Similarly, the Clause- 11(j), which is relevant for the purpose of the present case, provides that if a candidate fails to furnish any of the original certificates and documents for verification on the date fixed by the Commission, his/her candidature is liable to be rejected on that ground.
32. On a careful examination of the grounds laid down in Clause- 11 of the advertisement, this Court observed that there is no specific ground under which the candidature of the Petitioner could have been rejected as has been done in the case of the Petitioner under Annexure-9 to the writ application. In such view of the matter, this Court has no hesitation to hold that the OPSC had no authority to reject the candidature of the Petitioner.
33. In view of the aforesaid analysis of the factual as well as legal position, this Court is of the considered view that the impugned rejection order under Annexure-9 is unsustainable in the eye of law. Accordingly, the same is hereby quashed. Further, the Opposite // 28 // Parties are directed to accept the Discharge Certificate submitted by the Petitioner and further process the candidature of the Petitioner keeping in view performance of the Petitioner in the recruitment test as well as the merit list prepared by the Commission in respect of the posts advertised pursuant to Advertisement No.7 of 2020-21 for OCS Examination, 2020.
34. It is further made clear that in the event it is found that the Petitioner is qualified and only on the ground of the dispute with regard to the Discharge Certificate he has not been given appointment to a post reserved for Ex-servicemen category, on the recommendation of the OPSC, the Government shall give appointment to the Petitioner by reckoning his seniority from the date of his batchmates. However, the Petitioner shall not claim any salary or financial benefits for the aforesaid period.
35. Accordingly, the writ petition is allowed. However, in the facts and circumstances, there shall be no order as to costs.
( A.K. Mohapatra )
Judge
Signature Not Verified
Digitally Signed Orissa High Court, Cuttack
Signed by: DEBASIS AECH The 27th of September, 2023/Jagabandhu, P.A./
Designation: Secretary D. Aech, Secretary
Reason: Authentication
Location: OHC CUTTACK
Date: 27-Sep-2023 19:28:39