Orissa High Court
Afr Dr. Kaushik Patnaik vs State Of Orissa And Another ..... Opp. ... on 10 March, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 19501 OF 2019
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR Dr. Kaushik Patnaik ..... Petitioner
-Versus -
State of Orissa and another ..... Opp. Parties For petitioner : M/s. S. Patra-1 & Sandeep Rath, Advocates For opp. parties : Mr. R.P. Mohapatra, Addl. Government Advocate, [O.P. No.1] Mr. P.K. Mohanty-1, Sr. Advocate.
along with M/s. P. Mohanty, P.K. Nayak, P.K. Pasayat, S. Mohanty & S.N. Dash, Advocates.
[O.P. No.2] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 08.03.2021 DR. B.R. SARANGI, J. Dr. Kaushik Patnaik, who was a candidate for the post of Dental Surgeon in Group 'A' of Odisha Medical Services (Dental) Cadre under unreserved 2 category, has filed this writ petition seeking to quash communication dated 16.11.2018 under Annexure-12, by which his candidature has been rejected on the ground of overage due to non-submission of service certificate from Government or DHS, and further seeks for a direction to publish the result of the petitioner in the written examination, which was held on 06.05.2018 and to provide the marks awarded to him forthwith.
2. The concise statement of fact is that the Orissa Public Service Commission-opposite party no.2 issued an advertisement vide Annexure-1 in its website for recruitment to the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre under Health & Family Welfare Department inviting online applications from the prospective candidates through the proforma application to be made available in the website from 20.03.2018 to 07.04.2018. By the time the advertisement was issued, the petitioner was rendering service as a Senior Resident in the Department of 3 Periodontics at SCB Dental College & Hospital, Cuttack. The petitioner, being eligible for such post, sought permission from the Principal, SCB Dental College & Hospital, Cuttack to appear in such examination to be conducted by opposite party no.2. The Principal, vide letter dated 29.03.2018, certified that the petitioner, MDS is working as Senior Resident in the Department of Periodontics at SCB Medical College & Hospital, Cuttack since 10.08.2015 and continuing till that date, and that the institution has "No Objection" for him to apply for the post of Assistant Dental Surgeon under Odisha Public Service Commission (OPSC).
2.1 After obtaining such permission, the petitioner applied for the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre under UR category. On receipt of such application, opposite party no.2 allotted registration no. 15171849744 and roll no. 101382 to the petitioner, and consequentially issued a notice on 01.05.2018 vide Annexure-4 regarding 4 programme of examination informing therein that the candidates are admitted to the written examination scheduled to be held on 6th May, 2018. It was also instructed to the candidates to download their "admission certificate" and "instruction to candidates" from the website of the Commission from 01.05.2018 onwards. The above notice would show that the roll no. 101382 of the petitioner was earmarked for the examination centre at "Saraswati Sishu Vidya Mandira, Mahanadi Ring Road, Chahata Ghata, Tulasipur, Cuttack." Pursuant to the instruction vide Annexure-4, the petitioner downloaded "admission certificate" and "instruction to candidates"
from the website of the Commission. On 06.05.2018, the petitioner appeared in the written examination in the scheduled examination centre.
2.2 The opposite party no.2, vide notification dated 20.06.2018 at Annexure-6, intimated that the verification of original documents of the shortlisted candidates to the post of Dental Surgeon in Group 'A' (Jr.) 5 of Odisha Medical Services (Dental) Cadre under Health & Family Welfare Department, would be held in the office of the Commission on 28.06.2018 and 29.06.2018 and instructed the candidates to come with all original certificates/documents as per para-10 of the advertisement, duly filled in the attestation form and submit the same in person on the day of verification. The detail programme of the verification, intimation letter, and attestation form were available in the website of the Commission. In terms of the direction and instruction contained in Annexue-6, the petitioner downloaded the programme of the verification, intimation letter and attestation form from the website of the Commission. As per programme of verification, his roll no.101382 was fixed to 2nd session of 28.06.2018 under the Team No. III. The opposite party no.2, vide notice dated 09.08.2018, recommended the names of 171 candidates as per the list enclosed in order of merit for appointment to the posts of Dental Surgeon Group-"A" (Jr.) of Odisha Medical Services 6 (Dental) Cadre under opposite party no.1, pursuant to the advertisement at Annexure-1. But the petitioner found that his roll no.101382 was not there in the list and his name was not recommended.
2.3 The petitioner sought information under the Right to Information Act, 2005 (for short "RTI Act, 2005") regarding the final cutoff marks of UR, SC & ST recommended candidates and the marks awarded to them. The Public Information Officer of opposite party no.2, vide letter dated 27.08.2018, intimated that final cutoff marks of UR, SC and ST recommended candidates and mark of the applicant is available in the website of the Commission. Prior to seeking information under the RTI Act, 2005, the petitioner had checked the website where his marks were not available. After receipt of letter dated 27.08.2018, the petitioner downloaded the mark sheet, but his marks were not available in the list published by the opposite party no.2 relating to marks secured by the candidates in the written examination. The result of the 7 petitioner was not published nor did his name appear in the list. After obtaining the marks of finally selected candidates, the petitioner applied to the PIO, under the RTI Act, 2005 on 10.08.2018 about his marks secured in the written examination. But, he was intimated by opposite party no.2, vide letter dated 16.11.2018, that his candidature was rejected on the ground of overage due to non-submission of service certificate from the Government or DHS. The petitioner, thereafter, submitted representation to the Chairman of opposite party no.2 on 26.08.2020, but, as no action was taken thereon, the petitioner has approached this Court by filing this writ petition.
3. Mr. S. Patra-1, learned counsel for the petitioner contended that opposite party no.2-OPSC, having allowed the petitioner to appear in the written examination and participate in the process of selection, pursuant to advertisement at Annexure-1, for the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical 8 Services (Dental) Cadre, should not have said vide impugned communication dated 16.11.2018 that the petitioner's candidature was rejected on the ground of overage due to non-submission of service certificate from Government or DHS. It is contended that such communication is hit by principle of estoppel, in as much as the advertisement does not in any way require that in- service candidates were to furnish service certificate from the Government or DHS, save and except the upper age limit shall be relaxed up to 5 years in case of in-service doctors serving under State Government or State Government Undertaking on ad hoc or contractual basis. Admittedly, the petitioner is continuing as a Senior Resident and to substantiate the same, along with his application, he had enclosed the certificate issued by the Principal, SCB Dental College & Hospital, Cuttack. Thereby, the employer of the petitioner having satisfied that the petitioner is rendering service as a Senior Resident in the Department of Periodontics at SCB Dental 9 College & Hospital, Cuttack, rejection of his candidature, on the ground of overage due to non-submission of service certificate from Government or DHS, cannot sustain in the eye of law. It is further contended, the ground taken by opposite party no.2 that the Principal, who has issued the certificate, is not the competent authority, rather, the petitioner ought to have produced the certificate from the Government or DHS, who are competent to do so under law, and in absence of that, the candidature of the petitioner has been rightly rejected, has no basis and is not legally tenable, in view of the fact that nothing has been stated in the advertisement with regard to competent authority to certify that the candidate has been rendering service in the Government or Government undertaking. In absence of the same, the rejection of the candidature of the petitioner vide Annexure-12 cannot sustain in the eye of law.
4. Mr. R.P.Mohapatra, learned Addl.
Government Advocate appearing for the State contended 10 that any dispute involving recruitment to the post of Dental Surgeon, pursuant to advertisement issued under Annexure-1, is a lis between the petitioner and opposite party no.2, as the State Government is the only requisitioning authority and has nothing to do in the matter. If any condition stipulated in the advertisement under Annexure-1 has not been complied with, it is the opposite party no.2, which is to give reply to the same and not the present opposite party no.1.
5. Mr. P.K. Mohanty, learned Senior Counsel appearing along Mr. P. Mohanty, learned counsel for opposite party no.2 argued with vehemence that since the petitioner has been rendering service as a Senior Resident in the SCB Dental College and Hospital, Cuttack, he should have produced the certificate of engagement issued by the Government or DHS. Mere production of the certificate given by the Principal enabling the petitioner to get age relaxation to appear in the examination, cannot serve the purpose. Thereby, the impugned communication 11 rejecting the candidature of the petitioner is well justified and the writ petition is to be dismissed in limine.
6. This Court heard Mr. S. Patra-1, learned counsel for the petitioner; Mr. R.P.Mohapatra, learned Addl. Government Advocate appearing for opposite party no.1; and Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P. Mohanty, learned counsel for opposite party no.2-OPSC; and perused the record. Pleadings have been exchanged between the parties and with their consent the matter is being disposed of finally at the stage of admission.
7. For just and proper adjudication of the case, the relevant clauses of the advertisement issued vide Annexure-1 are quoted below:
"3. EDUCATIONAL QUALIFICATION: (i) A candidate must have possessed a Bachelors Degree in Dental Surgery (BDS) or equivalent Degree from a Medical College or Medical Institution recognized by the Dental Council of India (DCI).
(ii) Have possessed a Registration Certificate under the Dentists Act, 1948.
(iii) Have possessed required Conversion Certificates recognized by Dental Council of India 12 (DCI) in case of candidates having Degrees from Universities of Foreign Countries.
4. AGE: A candidate must not under 21 (twenty one) years and must not be above the age of 32 (thirty-two) years as on 1st January, 2018 i.e., he/she must not have been born earlier than 2nd January, 1986 and not later than 1st January, 997.
Age relaxation shall be as per Government Rules prescribed for the purpose.
Provided further that the upper age limit shall be relaxed up to 5 years in case of in-service Doctors serving under State Government or State Government Undertaking on ad hoc or contractual basis.
Provided also that a candidate coming under more than one category, shall be eligible for one only age relaxation benefit, which shall be considered most beneficial to such candidates.
SAVE AS PROVIDED ABOVE THE AGE LIMITS PRESCRIBED CAN IN NO CASE BE RELAXED.
Date of birth entered in the High School Certificate or equivalent certificate issued by the concerned Board/Council will be accepted by the Commission.
8. OTHER ELIGIBILITY CONDITIONS :
xx xx xx
(vii) Only those candidates, who possesses the required qualification and within the prescribed age limit etc. by the closing date of receipt of online application, will be considered eligible:
Xx xx xx 10. CERTIFICATES/DOCUMENTS TO BE ATTACHED xx xx xx
(xvi) Certificate from competent authority in support of past service as Dental Surgeon under 13 Government of Odisha in respect of candidates who claim age relaxation as serving Doctors. The period of part service as Medical Officer will be taken into account by the Closing date of receipt of online applications.
xx xx xx"
As per the above requirements, the petitioner has requisite educational qualification, but, in order to get age relaxation, as he was an in-service candidate and serving under the State Government as Senior Resident in SCB Dental College & Hospital, Cuttack, in support of the same the Principal, SCB Dental College & Hospital, Cuttack had given a certificate on 29.03.2018 vide Annexure-2, which the petitioner had enclosed with the application form, and in consideration of the same, he was allotted with roll number and was permitted to appear in the written examination by allotting a examination centre at Saraswati Sishu Vidya Mandira, Mahanadi Ring Road, Chahata Ghata, Tulasipur, Cuttack. In pursuance thereof, the petitioner appeared in the examination on the date and time fixed by the authority, but, when the result was 14 published, his roll number did not find place either in the list of successful candidates prepared by opposite party no.2 or in the mark-sheet allotting marks to each of the candidates. On query being made, he was informed vide Annexure-12 dated 16.11.2018 that his candidature has been rejected on the ground of overage due to non- submission of service certificate from the Government or DHS.
8. Fact remains, receipt of service certificate issued by the Principal, SCB Dental College & Hospital, Cuttack, under whom the petitioner has been serving, was acknowledged and acted upon by opposite party no.2. Having done so, the candidature of the petitioner ought not to have been rejected on the ground of non- submission of service certificate from Government or DHS. As per sub-clause (xvi) of Clause-10 of the advertisement, the certificate from competent authority in support of past service as Dental Surgeon under Government of Odisha in respect of candidates, who claim age relaxation as serving 15 doctors, was to be produced. Either in the advertisement or in the extant rules, "competent authority" has not been defined anywhere. Thereby, the petitioner, who has been rendering service as a Senior Resident under the Principal, SCB Dental College & Hospital, Cuttack, has given a certificate claiming age relaxation, which has been duly acknowledged by the authority and acted upon by permitting the petitioner to appear in the written examination. Therefore, subsequently, the opposite party no.2 should not have turned around and rejected the candidature of the petitioner on the ground of overage due to non-submission of service certificate from Government or DHS.
9. The entire action of the opposite party is hit by principal of estoppel. In B.L. Sreedhar v. K.M. Muireddy, (2003) 2 SCC 355, the apex Court held as follows:
"Is a complex legal notice, involving a combination of several essential elements, namely statement to be acted upon, acting on the faith of it, resulting detriment to the actor. 'Estoppel' is often 16 described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law. Estoppel is diffeent from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is necessary steps in continuation of the casue of action. But the whole case of Estoppel fails if the statement is not sufficiently clear and unqualified. 'Estoppel' is based on the maxim allegans contrarir non est audiendus (a party is not to be heard contrary) and is the spicey of presumption juries et de jure (absolute, or conclusive or irrebuttable presumption)."
10. In H.R. Basavaraj v. Canara Bank (2010) 12 SCC 458, the apex Court held that in general words, estoppel is a principle applicable when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his/her position. In such a case, the former shall be estopped from going back on the word given. The principle of estoppel is only applicable in cases where the other party has changed his positions relying upon the representation thereby made.
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11. Applying the above principles to the present case, this Court is of the firm opinion that the letter issued on 16.11.2018 under Annexure-12 rejecting the candidature of the petitioner on the ground of overage due to non-submission of service certificate from Government or DHS is hit by principle of estoppel.
12. As has been already stated, sub-clause (xvi) of Clause-10 requires that the certificate from "competent authority" in support of past service as Dental Surgeon under the Government of Odisha in respect of candidates, who claim age relaxation as serving doctors, is to be produced. But, on careful perusal of the advertisement under Annexure-1, this Court does not find anywhere in the same "competent authority" has been defined. Therefore, this Court took the pain of making an in-depth study and found that in Section 2(e) of the RTI Act, 2005, Section 2(d) of the Child Labour Prohibition and Regulation) Act, 1986, Section 2(c) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, Section 18 2(b) of the Emblems and Names (Prevention of Improper Use) Act Act, 1950, Section 2(b) of the Multimodal Transportation of Goods Act, 1993, Section 3(a) of the National Highways Act, 1956, Section 2(g) of the Juvenile Justice (Care and Protection of Children), Act, 2000, Section 2(c) of the Minimum Wages Act, 1948, Section 2(h) of the Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 2(7A) of the Railways Act, 1989 as inserted by Amending Act (No.11 of 2008) and Section 2(ca) of the Indian Boilers Act as inserted by Amending Act No. (49 of 2007) it has been categorically prescribed that "competent authority" is such authority, as the proper Government, namely, Central Government or State Government, by notification, have indicated. But in the present case, no such notification has been issued by the State Government specifying "competent authority"
to enable the employee working under the State Government to give the certificate to appear the examination for selection for the post of Dental Surgeon in 19 Group 'A' of Odisha Medical Services (Dental) Cadre. Nothing has been placed on record to justify as to who is the "competent authority" to give certificate to in-service doctors to claim age relaxation. Therefore, in absence of any such specification of "competent authority" under the law or guidelines or rules and regulations, it is the person under whom the petitioner is rendering service is competent to give certificate. Here, the Principal, SCB Dental College & Hospital, Cuttack, who has given the certificate, and the opposite party no.2, having acted upon the same, should not have subsequently rejected the candidature of the petitioner vide Annexure-12 on the ground of overage due to non-submission of service certificate from the Government or DHS.
13. In Meera Sahini v. Lt. Governor of Delhi, (2008) 9 SCC 177, while considering Section 2(b) of the Delhi Land (Restrictions on Transfer) Act. 1072, the apex Court held the "competent authority" means any person or authority authorized by the administrator, by notification 20 in the Official Gazette, to perform the functions of the competent authority under this Act for such areas as may be specified in the notification.
14. In Maysore State Road Transport Corporation v. Mirja Khasim Ali Beg, AIR 1977 SC 747, the apex Court while considering the sub-section (2) of Section-116 of the States Reorganization Act, 1956, the apex Court held as follows:
"The expression 'competent authority' occurring in sub-section (2) of Section 116 of the States Reorganisation Act, 1956 cannot be considered in isolation apart from the rest of the provisions of the Act. It has to be read in conjunction with, construed and understood as having the same meaning as the expression 'appropriate authority' contemplated by sub-s. (1) of that s. which in turn according to Article 311 (1) of the Constitution means the appointing authority or an authority equivalent to or co-ordinate in rank with the appointing authority."
15. Taking into consideration the above mentioned meaning attached to "competent authority"
and applying the same to the present context, since there is no such notification or any definition nor any rules or guidelines prescribed for the same, the petitioner applied 21 for the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre, in pursuance of the advertisement under Annexure-1, along with the certificate issued by the Principal, SCB Dental College and Hospital, Cuttack so as to get age relaxation, as the petitioner has been rendering service as a Senior Resident in the said institution, and on receipt of the same, the opposite party no.2 has acted upon by issuing roll number and allowing the petitioner to appear in the examination. Therefore, while publishing the result, the candidature of the petitioner should not have been rejected on the ground of overage due to non-submission of service certificate issued by the competent authority, namely, the Government or DHS.
16. It is specifically admitted in paragraph-6 of the counter affidavit filed by opposite party no.2 that the petitioner bearing roll no.101382 was working as Senior Resident in the Department of Periodontics of SCB Medical Dental College and Hospital, Cuttack since 22 10.08.2015 and was continuing till the closing date of receipt of online application. In view of such specific averment made by opposite party no.2, the requirement for production of service certificate issued by the competent authority, namely, the Government or DHS cannot have any justification.
17. The petitioner has relied upon the resolution dated 3rd February, 2014 published in official gazette by Government of Odisha, Health & Family Welfare Department regarding guidelines for engagement of Senior Resident/Tutor in Government Medical/Dental Colleges in the State of Odisha. Clause-4 of the said resolution deals with "appointing authority", which reads as follows:
"4. Appointing Authority.
4.1 Dean & Principal of the concerned Medical Colleges will be the appointing authority for the SR/Tutor."
Admittedly, the Principal, SCB Dental College & Hospital, Cuttack is the appointing authority of the petitioner under 23 whom the petitioner was rendering service as a Senior Resident. As such, the very same authority has given the certificate with regard to continuance of the petitioner as a Senior Resident in the Dental College & Hospital, Cuttack.
18. In State of Assam v. Kripanath Sarma, AIR 1967 SC 459, the apex Court held the "appointing authority" means the authority which appoints can only dismiss such persons as have been appointed by it. It cannot dismiss persons appointed by any other authority, if such persons have not been appointed by it in the exercise of its power as appointing authority. Similar view has also been taken by the apex Court in T. Cajee v. U. Jormanik Siem, AIR 1961 SC 276.
19. In view of principles of law laid down by the apex Court, as discussed above, and referring to the guidelines issued by the Government in Annexure-14 published in the official gazette dated 03.02.2014, since the Principal, SCB Dental College & Hospital, Cuttack is 24 the appointing authority of the Senior Resident/Tutor, he can be construed as "competent authority" to give certificate of continuance of the petitioner in service. As such, he himself has given the certificate, which is placed on record at Annexure-2 dated 29.03.2018 and on the basis of such certificate the opposite party no.2, having acted upon, cannot subsequently turn around and reject the candidature of the petitioner as the service certificate has not been issued by the competent authority in terms of clause- 10 (xvii). Thereby, the entire action taken by opposite party no.2 cannot sustain in the eye of law.
20. In view of such position, the impugned communication dated 16.11.2018 vide Annexure-12 rejecting the candidature of the petitioner on the ground of overage due to non-submission of service certificate from Government or DHS cannot sustain in the eye of law and the same is liable to be quashed and hereby quashed. The opposite party no.2-OPSC is thus directed to publish the result of the written examination of the petitioner, in 25 pursuance of the advertisement at Annexure-1, as expeditiously as possible, preferably within a period of four weeks from the date of communication of this judgment.
21. The writ petition is thus allowed. No order as to costs.
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DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 8th March, 2021, Ajaya/GDS