Orissa High Court
Bharat Kumar Jani And Another vs State Of Odisha And Others ... Opposite ... on 14 May, 2024
Author: G. Satapathy
Bench: B.R.Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.8290 and 15877 of 2016
(An application under Articles 226 & 227 of the
Constitution of India)
Bharat Kumar Jani and another ... Petitioners
(In W.P.(C) No.8290 of 2016)
Mrs. P.Rath,Sr. Advocate along with
Mr.B.Mohanty, Advocate
-versus-
State of Odisha and others ... Opposite Parties
Mr. B.Mohanty, AGA
Mr. P.K.Rath, Sr. Advocate
(OP Nos. 10 & 11-cum-Interveners)
State of Odisha ... Petitioner
(In W.P.(C) No.15877 of 2016)
Mr. B.Mohanty, AGA
-versus-
Rajeswar Bisoyi and others ... Opposite Parties
Mr. P.K.Rath,Sr. Advocate(OP No.6-cum-Intervener)
Mr.B.Parida, Advocate(Intervener)
CORAM:
HON'BLE DR. JUSTICE B.R.SARANGI
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :12.04.2024
DATE OF JUDGMENT:14.05.2024
G. Satapathy, J.
1. Challenge by different parties as petitioners to the common order dated 22.03.2016 passed in O.A. W.P.(C) Nos.8290 & 15877 of 2016 Page 1 of 38 No. 3633(C) of 2015 and connected batch of cases is identical in nature in both the writ petitions and they are accordingly disposed of by this common judgment.
2. The petitioners-Bharat Kumar Jani and Bishnu Charan Sahu who were working as Assistant Engineer (AE) and Junior Engineer (JE) Civil respectively in W.P.(C) No. 8290 of 2016 and the State of Orissa being represented by Principal Secretary to Government in Department of Water Resources in W.P.(C) No. 15877 of 2016 have prayed to quash/set aside the common order dated 22.03.2016 passed by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as "Tribunal") in O.A. No. 3633(C) of 2015 and connected three other OAs by filing these two writ petitions. The Tribunal by the impugned order has held and passed the following orders/directions:-
(i) The Odisha Engineering Service(Method of Recruitment and Conditions of Service) Amendment Rules, 2015 has no application to the present W.P.(C) Nos.8290 & 15877 of 2016 Page 2 of 38 recruitment and the posts advertised and accordingly the corrigendum issued pursuant to the said amendment vide Annexure-2 series (in Ο.Α.No.3633(c)/2015) are bad in law and the said corrigenda are quashed.
(ii) Selection and appointment, if any, made pursuant to the impugned corrigendum are quashed,
(iii) Advertisement issued in respect of the posts exceeding ceiling limit of 50% reservation is bad in law being violative of the principle of reservation and hence quashed.
iv) Action of the OPSC in excluding incorrect questions/ questions out of syllabus for evaluation is also illegal and hence set aside.
Consequently; instead of quashing the entire recruitment, which will affect a large number of meritorious candidates; the respondents, State of Odisha and OPSC are directed;
(i) to prepare merit list in respect of the candidates, who have applied and appeared in the recruitment examination pursuant to 1st W.P.(C) Nos.8290 & 15877 of 2016 Page 3 of 38 advertisement dated 17.04.2015 (without giving any relaxation as per the corrigendum) restricting reservation to the extent of 50%,
(ii) Following the decision of the Hon'ble Supreme Court, while preparing the merit/select list, the OPSC is directed to delete the incorrect question/question out of syllabus (faulty questions) and add/allot pro- rata mark.
On the basis of the select list prepared, appointment orders be issued in favour of the selected candidates.
The entire exercise be completed within a period of two months from the date of receipt of a copy of this order.
3. The sum and substance of facts involved in both the writ petitions are identical, but for convenience and in order to avoid repetition, the facts as described in W.P.(C) No. 8290 of 2016 are delineated in brief as, the petitioners being the AE & JE (Civil) are working in Government of Orissa in Water Resources Department under Minor Irrigation W.P.(C) Nos.8290 & 15877 of 2016 Page 4 of 38 Cadre and Major and Medium Irrigation Cadre. On receipt of requisition from Government of Odisha, on 17.04.2015 Orissa Public Service Commission (In short the "OPSC") published Advertisement No. 03 of 2015-16 for filling up post of Assistant Executive Engineer in both Civil and Mechanical Branch belonging to Housing & Urban Development Department (134 posts), Water Resources Department (291 posts in Civil and 25 posts in Mechanical) and Works Department (232 posts); all total 682(657 in Civil & 25 in Mechanical) posts. It was stipulated in the advertisement that the last date for submission of online application form was fixed to 27.05.2015 by 11.59 P.M. and last date for receipt of print out/ hard copy of online application form was fixed to 12.06.2015 by 5.00 P.M. By the aforesaid advertisement, the detail of vacancies position along with reservation, eligibility criteria, application fees, method of selection and place of examination, other conditions, certificates & documents required to be attached in the form and how to apply etc. were W.P.(C) Nos.8290 & 15877 of 2016 Page 5 of 38 specified and pursuant to such advertisement, the petitioners who were working in Water Resources Department, Government of Odisha had applied for the posts in respect of that Department along with other candidates including O.P. Nos. 4 to 8 as well as OP Nos. 10 & 11 who were added as a parties on their intervention applications in I.A. No. 18287 of 2018 & I.A. No. 3009 of 2020 by order No. 04 dated 14.03.2019 & order No. 06 dated 19.08.2021 respectively passed by this Court (hereinafter the candidates appeared in the recruitment test are referred to as the "applicants"), but subsequently, on 29.05.2015, the OPSC issued two corrigenda to the original Advertisement No. 03 of 2015-16 following the requisition received from Water Resources Department, which issued the requisition consequent upon the amendment to the Rules titled as Orissa Engineering Service (Methods of Recruitment and Conditions of Service) Rules, 2015 (In short "Amendment Rules, 2015"). In the first Corrigendum, the 2nd sub-Para of Para-4 of the Advertisement No. W.P.(C) Nos.8290 & 15877 of 2016 Page 6 of 38 03 of 2015-16 was substituted by the following sentence:-
" the upper age limit is relaxable by 5(five) years for candidates belonging to the categories of Scheduled Castes (S.C.), Scheduled Tribes (S.T.), Socially & Educationally Backward Classes (S.E.B.C.), Women, Ex-servicemen, and by 10 (ten) years for candidates belonging to Physically handicapped (O.H./H.I.) category, whose disability should not be less than 40%".
Similarly, in the second Corrigendum, a proviso was inserted after the 2nd sub-Para of Para-4 by inserting the following paragraph:-
"Provided further that the maximum age limit shall be relaxed to 45 years in respect of the candidates who have entered the Diploma Engineers' Service as Junior Engineers whether promoted to the post of Asst. Engineer or not within the prescribed age limit without the qualification prescribed under clause(b) of rule 6 and have subsequently acquired the same while serving as such or have acquired such qualification prior to entering the State Government Service as Junior Engineers subject to availing of not more than 5 chances".
Further, in the said Corrigendum after Para-2 Note(e) of the Advertisement, the following clause was inserted:-
"As per G.A. Dept. Resolution No. 33044 dated 11.12.2014 published in the Odisha Gazette on 15.12.2014 the Govt. have extended the W.P.(C) Nos.8290 & 15877 of 2016 Page 7 of 38 benefit of reservation for Sportsmen enumerated in G.A. Dept. Resolution No. 24808 dated 18.11.1985 in case of direct recruitment to Group A (JB) services/posts. Out of 657 posts advertised for Assistant Executive Engineer (Civil), 7(seven) posts are reserved for Sports men as per resolution dated 18.11.1985 within the respective category".
Further, in the Corrigendum the last date for submission of online application was extended up to 11.59 PM on 15.06.2015 and hard copy of online application up to 5.00PM on 27.06.2015. However, after three months of issue of Corrigenda, the applicants appeared in the examination on 30.08.2015, but before publication of result of written examination, on 29.09.2015, OP Nos. 7 & 8 filed O.A. No. 2652(C) of 2015 and O.A. No. 2653(C) of 2015 respectively and on 05.10.2015, OP No.4 filed O.A. No. 3633(C) of 2015, whereas OP No.5 filed O.A. No. 3551(C) of 2015 before the Tribunal challenging the recruitment process pursuant to the Advertisement No. 03 of 2015-16 inter alia questioning the legality of two Corrigenda and clubbing backlog vacancies including vacancies meant of reserved category, in W.P.(C) Nos.8290 & 15877 of 2016 Page 8 of 38 addition to the legality of the advertisement for violation of principle of reservation exceeding the ceiling limit of 50%. In these OAs, initially interim orders were passed on 06.10.2015 permitting the recruitment process to continue, but not to publish the result. However, the aforesaid interim order was modified on 04.12.2015 by the Tribunal in O.A. No. 3551(C) of 2015 permitting to declare the result subject to final outcome of these OAs and accordingly, the result of the recruitment pursuant to Advertisement No. 03/2015-16 was published by OPSC recommending the names of 675 candidates (651 in Civil + 24 in Mechanical), but only four persons including the present petitioners were successful in the recruitment process as inservice Junior Engineer/ Assistant Engineer and were selected for the posts after facing both written and viva voce tests and in the process, the names of inservice selected Junior Engineers and Assistant Engineers were forwarded to the Government. W.P.(C) Nos.8290 & 15877 of 2016 Page 9 of 38
4. In W.P.(C) No. 8290 of 2016, the challenge of OPNo.4 as petitioner in O.A. No.3633(C) of 2015 and that of OPNo.5 as petitioner in O.A. No.3551(C) of 2015 is identical and they have questioned the validity of the two Corrigenda in the OAs enlarging the scope of candidates who were initially found not to be eligible. Further, OPNo.7 as petitioner in OA No.2653(C) of 2015 and OPNo.8 as petitioner in OA No.2652(C) of 2015 in addition to challenge of OPNos.4 and 5 have also challenged the recruitment process pursuant to the advertisement for clubbing up the back log vacancies meant for reserved category instead of going for a special drive to fill up the reserved vacant post. Further, OPNo.5 has claimed the advertisement to be violative of principle of reservation for exceeding the ceiling limit of 50% and indulgence of widespread malpractices by candidates in examination using smart phones, I-pad and other electronic gazettes to solve the questions inside the examination hall. It is also alleged by him that even outsiders were allowed to appear in the W.P.(C) Nos.8290 & 15877 of 2016 Page 10 of 38 examination by impersonating to assist some of the candidates by appearing for them. One of the allegations against OPSC by OPNo.5 in OA is that the question papers had not been set properly and the question papers contained out of syllabus questions as well as wrong questions were framed therein and some of the questions were having more than one answer, which greatly affected the candidates like him. It is accordingly prayed in the OAs to cancel the examination and to direct for conducting fresh examination.
5. In these OAs, the State and OPSC had filed separate counter affidavits. It is, however, stated in these counter affidavits that the Orissa Service of Engineer Rules, 1941 (In short the "Rules 1941") was in force for a long time, but after finding the majority of the provisions of the Rules to have become obsolete, the Orissa Engineering Service (Method of Recruitment and Conditions of Service) Rules, 2012 (In short, Rules, 2012) was framed and Orissa Engineering Service Cadre was restructured, but the W.P.(C) Nos.8290 & 15877 of 2016 Page 11 of 38 Rules, 1941 does not limit the age relaxation for in service candidates like Junior Engineer within the prescribed age limit and thus, by taking into account the case of inservice candidates without the qualification as prescribed under Clause-d to Rule-9, but subsequently acquiring the same while serving as such which was not available in Rules, 2012 and to tide over the discontentment amongst the Diploma holders working as Junior Engineers/Assistant Engineers in Orissa Engineering Service for being deprived of appearing in the examination for recruitment to the post of Assistant Executive Engineer due to overage and on the demand of the Diploma Engineers Service Association, the Amendment Rules, 2015 was brought with due approval of the Governor with effect from 21.05.2015 and thereby, no illegality was committed by issuance of Corrigenda which was issued pursuant to the requisition received from the Government in Water Resources Department and the said amendment to the Rules is in accordance with the proviso to Article W.P.(C) Nos.8290 & 15877 of 2016 Page 12 of 38 309 of the Constitution of India and in terms of the Corrigenda, relaxation in maximum age up to 45 years has been provided to the Degree holder Junior Engineer/Assistant Engineer of Diploma Engineering Service for recruitment to the post of Assistant Executive Engineer Civil and Mechanical. Additionally, it is stated in the counter affidavit that there was no wrong question except repetition of one question in Civil Engineering and four out of syllabus questions in Mechanical Engineering which are to be rectified by excluding those questions from the purview of evaluation and there is absolutely no malpractice indulged as claimed in view of the fact that the Collector concerned on being asked submitted report to have conducted written examination smoothly and fairly in a disciplined manner.
6. OPNo.4 as the petitioner in OA No.3633(C) of 2015 filed his rejoinder to the counter affidavits stating inter alia that there is no provision in amended Rules, 2015 to make it retrospective and the settled position of law is that in absence of any W.P.(C) Nos.8290 & 15877 of 2016 Page 13 of 38 provisions, the Act and Rules are prospective and even if he has accepted the terms and conditions of the advertisement and appeared in the written examination, yet there being no Rule of estoppel against the provision of law and thus, there is no bar for the petitioner to challenge the issuance of Corrigenda at a subsequent stage, but there is no scope for age relaxation to SEBC candidates, since the Orissa Reservation of Post and Services (Socially Educationally Backward Classes, 2008) has been declared ultra vires by the Tribunal.
7. After having analyzed the materials on record including the rival pleadings together with relevant rules and noticing upon the dictums of some decisions upon hearing the learned counsel for the parties, the Tribunal passed a common order in these four OAs, which is impugned in these two writ petitions filed by the State of Orissa, and two employees working as Assistant Engineer (Civil) and Junior Engineer (Civil), who are found successful in W.P.(C) Nos.8290 & 15877 of 2016 Page 14 of 38 the Recruitment Test, by issuing a slew of directions indicated in the first paragraph.
8. It is, however, clarified that OPNo.4-Rajeswar Bisoyi, OPNo.5-Saumyadipta Sahoo and OPNo.8- Sibasankar Tandia have also filed separate writ petitions in W.P.(C) Nos.8871, 7756 & 8063 of 2016 respectively in the matter relating to impugned order, but these writ petitions were dismissed by an order passed by this Court on 04.08.2023 for non- prosecution. Further, OPNo.11-Rajib Lochan Padhi was impleaded as a party in both the writ petitions on his intervention application in I.A. No.18287 of 2018 and I.A. No.138 of 2019 by two different orders passed by this Court on 14.03.2019 on which date, while admitting both the writ petitions, orders were also passed therein by this Court clarifying that no intervention application would be entertained after 25.03.2019 and whosoever wants to file intervention application, he may file the same before 25.03.2019. However, one Suryakanta Pradhan who wanted to support the impugned order passed by the Tribunal W.P.(C) Nos.8290 & 15877 of 2016 Page 15 of 38 has been impleaded as OPNo.10 by an order passed by this Court on 19.08.2021 in IA No.3009 of 2020 arising out of W.P.(C) No.8290 of 2016, but on 28.08.2023 four unsuccessful candidates in the recruitment process have also filed an intervention petition in I.A. No.13534 of 2023 in W.P.(C) No.15877 of 2016 to be impleaded as parties, however, in order to provide fair opportunity to them, the counsel representing the aforesaid four unsuccessful candidates has also been heard in the matter, notwithstanding to their filing of intervention application beyond the time stipulated by this Court.
9. Mrs. Pami Rath, learned Senior Counsel appearing along with Mr.B.Mohanty, learned counsel appearing for the petitioners in W.P.(C) No. 8290 of 2016 has submitted that the learned Tribunal has gone wrong in appreciating the facts involved in this case by observing that the OPSC had issued Corrigenda after the last date of submission of application which is very much contrary, since after issuance of Corrigenda, the last date for submission W.P.(C) Nos.8290 & 15877 of 2016 Page 16 of 38 of online application and hard copy of application were extended from 17.05.2015 to 15.06.2015 and 12.06.2015 to 27.06.2015 respectively. It is, however, submitted that the Tribunal has erroneously considered the posts advertised were back log vacancies of the year 2014, but the vacancies were admittedly arose from the year 1989 in different Departments and these vacancies had existed when 1941 Rules was prevalent, which provides the same benefits as were introduced by the Corrigenda, but benefitting some candidates after initiation of recruitment process is impermissible, which is the principle under which Corrigenda were struck down, however, such Corrigenda would only render the same provisions as were introduced by way of amendment to the 2012 Rules applicable to all the candidates and thereby the claim of the applicants in OAs would become meaningless. It is alternatively argued that since the vacancies that had arisen prior to the amendment, the Rules, 1941 being applicable to all the applicants is having same effect with the W.P.(C) Nos.8290 & 15877 of 2016 Page 17 of 38 Rules, 2012 along with the amendment Rules of 2015 and therefore, the Tribunal has fallen in error in quashing the Corrigenda. Mrs. Rath has although argued with regard to rest of the findings of the Tribunal, but she, however, has not seriously argued with regard to the observation of the Tribunal regarding maintaining of reservation limit at 50% and allotment of pro-rata mark in respect to answers to wrong and out of syllabus questions.
9.1. Mr.Biplab Mohanty, learned Additional Government Advocate in reiterating the submissions of Mrs.Rath has further submitted that the learned Tribunal has passed the impugned order on wrong appreciation of facts and incorrect interpretation of law by taking into consideration the irrelevant materials which are not germane to the issue and the applicants in OAs having appeared in the examination, it is not open for them to challenge the recruitment process after being remained unsuccessful. It is further submitted by Mr.Mohanty that since none of the selected candidates having W.P.(C) Nos.8290 & 15877 of 2016 Page 18 of 38 being made as parties by the applicants in OAs, the OAs are not maintainable, but ignoring such issue, the learned Tribunal has passed the impugned order. In confining his submission, Mr.Mohanty has prayed to allow the writ petitions by quashing the impugned order so far as it relates to quashing of Corrigenda issued by OPSC.
9.2. Mr.Prafulla Kumar Rath, learned Senior Counsel appearing for the intervener in W.P.(C) No. 8290 of 2016 and W.P.(C) No. 15877 of 2019 has submitted that since the Corrigenda were issued after initiation of the selection of process in the recruitment examination, it cannot confer any right to those persons who were made eligible by issuance of Corrigenda to appear in the examination since by introduction of Corrigenda, the scope of ineligible candidates for recruitment to the post advertised was enlarged and thereby, affecting the prospect of eligible candidates and the Tribunal has rightly passed order directing to struck down the Corrigenda. It is also brought to the notice of the Court by W.P.(C) Nos.8290 & 15877 of 2016 Page 19 of 38 Mr.Rath that OP No. 10 who has been impleaded as party on his intervention has filed OA No. 2474(C) of 2015 which was disposed of in terms of the impugned order and since the impugned order having extended benefit to the persons who only were eligible in terms of the advertisement prior to the issuance of Corrigenda, any interference in the impugned order to upheld the Corrigenda in these writ petitions would cause great hardship to the candidates. 9.3. Mr.B.Parida, learned counsel appearing for the intervener in W.P.(C) No. 15877 of 2019 has confined his submission supporting the impugned order by inter alia contending that the order impugned in this writ petition being passed on sound appreciation of facts and correct interpretation of law needs no interference. Accordingly, Mr.P.K.Rath, learned Senior Counsel and Mr. B.Parida, learned counsel appearing for the respective intervener-opposite parties have prayed to dismiss the writ petitions.
10. After having duly considered the rival submissions upon going through the materials placed W.P.(C) Nos.8290 & 15877 of 2016 Page 20 of 38 on record, since there being no factual dispute, this Court considers it appropriate to re-examine the findings of the learned Tribunal by applying the principle of law to the admitted facts of the case. For the purpose of regulating the Method of Recruitment and Conditions of Service in Orissa Engineering Service, the Rules, 1941 was prevalent prior to coming in force the 2012 Rules which has been framed under the proviso to Article 309 of the Constitution of India and the aforesaid Rule has been brought into force with effect from 3rd January, 2013, but subsequently, this Rule was amended vide the Amendment Rules, 2015 by incorporating a paragraph to the proviso to Rule 6 of the Rules 2012, which is mainly for providing age relaxation up to 45 years and some relaxation in qualification for in service candidates. The Amendment Rules 2015 came into force with effect from 21.05.2015, but by this time, Advertisement No. 03/2015-16 had already been published inviting application for eligible candidates for recruitment to the post of Assistant W.P.(C) Nos.8290 & 15877 of 2016 Page 21 of 38 Executive Engineer(Civil) and Assistant Executive Engineer(Mechanical) in Group 'A' of Orissa Engineering Service under Water Resources Department, Works Department and Housing & Urban Development Department through OPSC who had issued the advertisement on 17.04.2015 for filling of 682 posts in the above three Departments and pursuant to requisition received from Government in Water Resources Department, OPSC accordingly issued Corrigenda on 29.05.2015 by which age relaxation to JE/AE and reservation to sports persons were provided, but while doing so, the OPSC extended the last date for submission of application of the candidate in online mode from 27.05.2015 to 15.06.2015 and for submitting hardcopy from 12.06.2015 to 27.06.2015. it is, however, not disputed that the amended Rules, 2015 came into force on 21.05.2015 and the OPSC had issued the Corrigenda pursuant to the requisition of Water Resources Department vide letter dated 23.05.2015 which was within the last date for submission of W.P.(C) Nos.8290 & 15877 of 2016 Page 22 of 38 application. However, the Corrigenda issued to include reservation for sports person was already been notified in Odisha Gazette w.e.f. 11th December, 2014 which of course cannot be said to be after the last date for submission of application. Be that as it may, since the last date for submission of application form having being extended and no prejudice having being claimed by any of the candidates who had applied for the post pursuant to the advertisement, it would be neither correct to say that no reasonable opportunity has been provided to the candidates nor can it be said that the Corrigenda were issued after the last date for submission of application depriving any of the candidates to take its benefit.
11. It is of course true that the applicants in OAs, however, had claimed that by introduction of Corrigenda, the scope for some of the ineligible candidates as on last date of application on 27.05.2015 was enlarged to deprive the prospective candidates in the process of selection and the amended rules should not be retrospective which was W.P.(C) Nos.8290 & 15877 of 2016 Page 23 of 38 in fact weighed in the mind of the Tribunal while quashing the Corrigenda. Adverting to the findings of the Tribunal on this aspect of striking down the Corrigenda, this Court reminds itself that a statutory rule or act or notification may physically consists of words printed on papers, but conceptually it has far reaching consequence either benefitting or depriving some persons. It is also equally true that the principle of law emanates from the latin phrase "lex prospicit non respicit" which means law looks forward not backward. However, for the purpose of supplying an obvious omission in a former legislation or to explain a former legislation, it may be retrospective in operation, since the presumption would be that such a legislation giving it a purposive construction would give it a retrospective effect. While examining the retrospective or prospective operation of a statute or Rule, more particularly in absence of any provision for it, the "doctrine of fairness" would have to be considered. In other words, where a benefit is conferred by a legislation, the Rule against a W.P.(C) Nos.8290 & 15877 of 2016 Page 24 of 38 retrospective construction would be different, however, if a legislation confers a benefit on some persons, but without inflicting a corresponding detriment on some other person or on the public generally; and where to confers such benefit appears to have been the legislature's object, then the presumption would be for giving it a purposive construction benefitting the persons by way of retrospective operation. This is exactly the principle by which procedural law are considered to have retrospective operation. The "doctrine of fairness"
was held to be relevant factor to construe a statute conferring a benefit in the context of it to be given a retrospective operation as held in Government of India and others vrs Indian Tobacco Association; (2005) 7 SCC 396, wherein at paragraph-27 it is further held by the Apex Court that where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior act was passed. In the aforesaid decision, W.P.(C) Nos.8290 & 15877 of 2016 Page 25 of 38 the Apex Court has further held at paragraph-29 as under:-
"29. The question has furthermore to be considered having regard to the language and object discernible from the statute read as a whole. The Respondents were not ineligible from obtaining the benefit. Once they are held to be eligible for obtaining the benefit, the amended notification being an exemption notification should receive the beneficent construction."
12. The same definition of fairness to hold "a statute retrospective in nature" was applied in the case of Vijay vs. State of Maharastra and Others; (2006) 6 SCC 289 wherein at paragraph-12, the Apex Court has held as under:-
"12. xxx xxx xxx xxx xxx It is now well-settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature."
13. In Keshavlal Jethalal Shah vs. Mohanlal Bhagwandas & Another (1968) 3 SCR 623, a W.P.(C) Nos.8290 & 15877 of 2016 Page 26 of 38 eight Judge Constitutional Bench of our Apex Court has held at paragraph-15 of the judgment as under :-
"15. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from s. 115 Code of Civil Procedure, and the Legislature has by the Amending Act attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."
14. On liberal construction of the Rules as directed by the decisions referred to above would not render the Corrigenda inoperable, since the Corrigenda were issued to advance substantial justice and by it, no person or candidate was deprived of to appear in the examination, rather the Corrigenda was intended to fill-up or supplement the eligibility conditions of the in-service candidates by grant of age relaxation which in no manner debar or disqualify any of the prospective candidates from applying and appearing in the examination. Even otherwise, the Corrigenda issued can be considered to have retrospective W.P.(C) Nos.8290 & 15877 of 2016 Page 27 of 38 operation by applying the principle culled out in the decisions referred to above.
15. A careful glance of the impugned judgment, it appears to the Court that while striking down the Corrigenda, the learned Tribunal has mainly relied upon the decisions in (i) Y.V.Rangaiah and others vrs. J.Sreenivasa Rao and others; (1983) 3 SCC 284, (ii) A.A.Calton Vrs. Director of Education and another;(1983) 3 SCC 33, (iii) State of Rajasthan Vrs. R.Dayal and others; (1997) 10 SCC 419, (iv) B.L.Gupta and another vrs. M.C.D.; (1998) 9 SCC 223, (v) A.Manoharan & others vrs. Union of India and others; (2008) 3 SCC 641 and (vi) A.P.Public Service Commission vrs. B.Swapna and others; (2005) 4 SCC 154, but in State of Himachal Pradesh and others vrs Raj Kumar and others; (2023) 3 SCC 773, on a extensive survey of 15(fifteen) case laws holding the field of retrospective or prospective operation of the Rule, the Apex Court has distinguished the principle W.P.(C) Nos.8290 & 15877 of 2016 Page 28 of 38 as laid down in Y.V.Rangaiah(supra) by holding in paragraphs-82.1 to 82.5 as under:-
"82.1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah case must be understood in the context of the rules involved therein. 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
82.4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. 82.5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the W.P.(C) Nos.8290 & 15877 of 2016 Page 29 of 38 amendment, the State cannot be directed to consider the cases."
In the aforesaid judgment in Raj Kumar (supra), while holding that the decision in Y.V.Rangaiah(supra) is impliedly overruled, the Apex Court has also distinguished the decision in B.L. Gupta (supra), A.A. Calton (supra), R. Dayal (supra) and further held in paragraph-85.1 as under:-
"85.1. The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, "the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules", does not reflect the correct proposition of law governing services under the Union and the States under Part XIV of the Constitution. It is hereby overruled."
16. It is also equally settled that a candidate appearing in the examination has no vested right to be appointed against a post advertised, but certainly he has right to be considered fairly for appointment subject to the applicable rules. It is also not disputed that the State has right to stop recruitment process at any time before appointment, but it has to justify its action on the touchstone of Article 14 of the W.P.(C) Nos.8290 & 15877 of 2016 Page 30 of 38 Constitution of India, if it adopts such a course. Further, the existence of vacancy does not give rise to a legal right to a selected candidate. Thus, it is to be understood in the light of aforesaid decisions that any accrued or vested right of the applicant has not been taken away by the amendment of the Rules since a candidate has a right to be considered in the light of existing rules namely Rules in force as on the date. In other words, the candidates who had appeared in the examination and passed the written examination has only legitimate expectation to be considered according to the Rules then in vogue and the Government is entitled to conduct selection in accordance with the amended Rules and make final recruitment.
17. Yet, another aspect which is linked in this case is that the applicants in the OAs had challenged the Corrigenda after appearing in the examination with full knowledge of the Corrigenda and the Corrigendum issued for age relaxation to bring participation of inservice candidates who were out of W.P.(C) Nos.8290 & 15877 of 2016 Page 31 of 38 zone of consideration at the initial stage of advertisement. It is also not in dispute that the applicants had approached the Tribunal after four to five months of the issuance of Corrigenda which is after consciously participating in the recruitment process pursuant to the advertisement issued for filling up the vacancies for the post of Assistant Executive Engineer, but this Court is conscious of the principle that a candidate can challenge the selection process, but once he having taken part in the selection process without any protest cannot after words normally challenge the same. In this regard, this Court considers it apt to refer to the decision in Tajvir Singh Sodhi and others vrs. State of Jammu and Kashmir and others; 2023 SCC Online 344, wherein it has been held that candidates having taken part in the selection process without any demur or protest, cannot challenge the same after having being declared unsuccessful and candidates cannot approbate or reprobate at the same time. In the present case soon after issuance of W.P.(C) Nos.8290 & 15877 of 2016 Page 32 of 38 Corrigenda, neither the applicants in the OAs had challenged the Corrigenda immediately nor had they protested the same by making representation either to the Department or to OPSC, but they had consciously applied to sit in the examination and sometime after appearing in the examination, they suddenly had challenged the Corrigenda before the Tribunal which only reflects their acquiescence to the Corrigenda by waiver and the interveners stand in much lesser footing than the applicants, since neither they had challenged the Corrigenda in the Tribunal nor before this Court which relegates them to be fence sitter watching the litigation between some of the examinee and the recruitment agency/ department and taking a calculative steps by filing intervention application in these writ petitions only to support the impugned order. However, the dicta of Tajvir Singh Sodhi (supra) would squarely applicable in the case of interveners, since they only dispute the issuance of Corrigenda after unsuccessfully appearing in the examination. Besides, W.P.(C) Nos.8290 & 15877 of 2016 Page 33 of 38 the intervener, who has been impleaded as O.P. No.10 in W.P.(C) No.8290 of 2016 had filed O.A. No.2474 of 2015 with a prayer to direct OPSC to conduct recruitment test afresh, but the Tribunal having disposed of the same O.A. in the light of direction and observation passed in the impugned order and he having approached this Court in the year 2020 was added as O.P. No.10 to the writ petition, however, he has filed counter affidavit only to support the findings of the Tribunal, not withstanding to his claim and prayer to direct for conducting fresh recruitment test. More or less, is the case of the other intervener Rajiv Lochan Padhi, who has been impleaded as O.P. No.11 to the writ petition. On the other hand, the interveners in I.A. No.13534 of 2023 to the writ petition in W.P.(C) No.15877 of 2016 have never challenged the Corrigenda in any forum and for the first time, they have filed the aforesaid intervention application to interfere in the matter, but this Court, however, has afforded opportunity to the counsel for the aforesaid W.P.(C) Nos.8290 & 15877 of 2016 Page 34 of 38 interveners to argue in the matter. In the aforesaid situation, the interveners in I.A. No.13534 of 2023 having approached to this Court after long lapse of issuance of advertisement/Corrigenda and that too, they having unsuccessful in the examination, their case is squarely covered by the principle enunciated in Tajvir Singh Sodhi (supra).
18. In view of the discussions made hereinabove and on factual analysis, there appears no dispute that the learned Tribunal while striking down the Corrigenda has not only erroneously applied the law, but also has incorrectly considered that the Corrigenda were issued two days after the last date of submission for application which was in fact extended and the quashing of Corrigenda by the Tribunal would appear to be erroneous in view of the law laid down by the Apex Court in Raj Kumar (supra) and the same cannot stand the legal scrutiny. Hence, the impugned order so far as it relates to quashing of the Corrigenda issued by OPSC W.P.(C) Nos.8290 & 15877 of 2016 Page 35 of 38 being unsustainable in the eye of law is hereby set aside.
19. On coming to the rest of the findings of the Tribunal in the impugned order with regard to the limit of reservation, this Court has no hesitation to reiterate that the settled law is that the extent of reservation cannot exceed 50%, since the same has been held by various Constitutional Court and thereby, the direction of the Tribunal to limit the reservation up to 50% and not to exceed beyond that being constitutionally valid cannot be interfered with. Further, none of the writ petitioners have raised the issue to dispute the ceiling limit of 50% reservation. In respect of the other findings of the Tribunal with regard to excluding the incorrect question and out of syllabus questions from the purview of evaluation, it appears that the learned Tribunal has rightly taken into consideration the paragraph-2 of the counter affidavit of the OPSC filed in the OAs and thereby, passing of direction to prepare merit/select list by deleting the incorrect questions or questions out of W.P.(C) Nos.8290 & 15877 of 2016 Page 36 of 38 syllabus and allotting pro-rata mark cannot be considered to be erroneous and this finding has never been challenged by any of the writ petitioners. In the net result, what is settled is that an employer cannot be forced to fill up all the existing vacancies under the old Rules. The employer may, in a given situation, withdraw an advertisement and issue a fresh advertisement in conformity with the new or amended Rules. Even otherwise, a candidate included in the merit/select list has no indefeasible right to appointment even if the vacancies exist.
20. On cumulative assessment of the materials placed on record and discussions made hereinabove, this Court only finds the direction of the Tribunal quashing the Corrigenda to be erroneous and accordingly, such finding of the Tribunal is directed to be set aside. Further, the consequent direction not to provide age relaxation to the inservice candidates in terms of Corrigendum as recorded in (i) of 2nd sub- para of paragraph-33 of the impugned order is also set aside.
W.P.(C) Nos.8290 & 15877 of 2016 Page 37 of 38
21. In the result, both the writ petitions are allowed in part on contest, but no order as to costs. Consequently, the order impugned in these writ petitions stands quashed so far as it relates to quashing of the Corrigenda and the direction for not to provide age relaxation to inservice candidates, but rest of the directions in the impugned order of the Tribunal need no interference and are hereby confirmed.
(G. SATAPATHY) JUDGE Dr. B.R. Sarangi, J. I Agree (DR. B.R. SARANGI) JUDGE Signature Not Orissa HighVerified Court, Cuttack, Digitally Signed Dated the 14th day of May, 2024/Kishore Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 14-May-2024 11:27:23 W.P.(C) Nos.8290 & 15877 of 2016 Page 38 of 38