Orissa High Court
Afr Tapas Biswal vs State Of Odisha And Others ..... Opp. ... on 23 June, 2021
Equivalent citations: AIRONLINE 2021 ORI 244
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WPC(OAC) NO. 387 OF 2014
In the matter of an application under Article 226 of the
Constitution of India.
---------------
AFR Tapas Biswal ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. K.K. Swain,
P.N. Mohanty, U. Chhotray &
P.K. Mohapatra, Advocates
For Opp. Parties : Mr. M. Balabantaray,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing and judgment : 23.06.2021 DR. B.R. SARANGI, J. The petitioner, by way of this writ petition, seeks direction to opposite party no.4- Chief Fire Officer, Odisha, Cuttack to allow him to work as a Fireman in Odisha Fire Service pursuant to // 2 // appointment order dated 29.12.2013 in Annexure-4 and submission of joining report dated 03.01.2014 in Annexure-5 and grant all consequential benefits admissible to him in accordance with law.
2. The factual matrix of the case, in brief, is that pursuant to advertisement issued on 18.04.2013 published in the local daily "The Samaj", the petitioner, having satisfied the required conditions stipulated therein, applied for the post of Fireman in Odisha Fire Service under SEBC category. Accordingly, he was called upon to appear the physical test and after he became successful, admit card was issued in his favour indicating that he was qualified and allowed to appear in the written test. After he became successful in the written test, vide letter dated 07.11.2013, he was called upon for verification of his original educational certificates, caste certificate, N.C.C. certificate and medical fitness certificate. Accordingly, he produced all the original certificates required for verification. Having // 3 // satisfied that the petitioner qualified both in physical test and written test, and subsequently on verification of certificates, opposite party no.4 issued appointment order on 29.12.2013 in favour of the petitioner to join as Fireman in Odisha Fire Service in the revised scale of Rs.5,200-20,000/- with grade pay of Rs.1900 with usual allowances admissible as per rules. 2.1 Pursuant to such appointment letter dated 29.12.2013, the petitioner submitted his joining report on 03.01.2014, but he was not allowed to work as Fireman in Odisha Fire Service without assigning any reasons.
2.2 Hence, seeking the above relief the petitioner filed O.A. No. 387 (C) of 2014 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, but on abolition of the same, the said O.A. was transferred to this Court, in pursuance of order dated 27.11.2019 passed in W.P.(C) No. 18004 of 2019 // 4 // by a Division Bench of this Court, and registered as above and taken up for hearing.
3. Mr. K.K. Swain, learned counsel for the petitioner contended that the petitioner, having satisfied the requirement pursuant to advertisement issued under Annexure-1 dated 18.04.2013, applied for the post of Fireman under SEBC category and having qualified in physical test and written test, he was called upon to produce the relevant documents for verification. After verification of documents and on completion of all formalities, when the petitioner was qualified to be appointed as Fireman, necessary appointment letter was issued on 29.12.2013 in his favour. Consequentially, he submitted his joining report on 03.01.2014, but he was not allowed to work as Fireman, without communicating any reasons therefor to the petitioner. Thereby the action taken by the authority is arbitrary, unreasonable and contrary to the provisions of law. More so, the same is violative of the // 5 // principle of estoppel. It is further contended that due to any error committed by the authority, the petitioner should not make to suffer. To substantiate his contentions, he has relied upon a judgment of this Court in Pratima Sahoo v. State of Orissa, 2021 (I) OLR 174.
4. Mr. M. Balabantaray, learned Addl.
Standing Counsel for the State argued with vehemence, referring to counter affidavit filed on behalf of opposite parties no.1 to 4, and contended that it is the admitted fact that the petitioner was selected and appointment letter was issued in his favour, but the same was not accepted because of the fact that a team of Fire personnel were assigned for verification and re- checking of genuineness of all the certificates and medical fitness, etc.. The Officer-in-Charge of re- checking team observed that the height of the petitioner was found 10 cm less than the height recorded during the recruitment test, for which the Fireman // 6 // Recruitment Board unanimously decided to delete the name of the petitioner from the combined merit list sponsored by the Board and not to accept his joining report pursuant to appointment letter issued to him in accordance with the previously sponsored list vide Sl. No.69 of SEBC category. It is contended that the deletion of the name of the petitioner from the select list of the Fireman was already communicated to the petitioner after re-measurement of his height. Thereby, there is no illegality or irregularity committed by the opposite parties in not accepting the joining report of the petitioner. It is further contended that if illegality or irregularity committed in favour of any individual or group or a wrong order passed by a judicial forum would not entitle others to invoke the jurisdiction of higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. To substantiate his contentions, he has relied upon State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65.
// 7 //
5. This Court heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. M. Balabantaray, learned Addl. Standing Counsel for the State opposite parties by virtual mode, and perused the record. Since pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
6. In the instant case, there is no dispute with regard to factum of issuance of advertisement for the post of Fireman, submission of application by the petitioner, his appearance and qualifying in physical test and written test and consequential issuance of appointment letter in his favour. But, non-acceptance of his joining report, pursuant to appointment letter issued under Annexure-4 dated 29.12.2013, is the subject-matter of consideration by this Court. In the counter affidavit, it is stated that the Officer-in-Charge of re-checking team observed that the height of the // 8 // petitioner was found 10 cm less than the height recorded during the recruitment test, for which the Fireman Recruitment Board unanimously decided to delete the name of the petitioner from the combined merit list sponsored by the Board. Consequentially, his joining report was not accepted.
7. As it reveals from the advertisement under Annexure-1 dated 18.04.2013, clause-6 thereof deals with physical measurement of the candidates, which reads thus:
Sl.No. Category Height weight Chest
measurement
Unexpand expand
1 General(Un- 168 cm 55 K.G 79 cm 84 cm
reserved)/SEBC
2 S.C/S.T 163 cm 50 K.G 76 cm 81 cm
8. Admittedly, the petitioner belonged to SEBC category and for him the minimum height, i.e., 168 cm is the requirement. The proceeding of Fireman // 9 // Recruitment Board 2013, which has been annexed as Annexure-A to the counter affidavit filed on behalf of opposite parties no.1 to 4 reads as follows:
" xxxx The candidate deserves 12 marks against his actual height of 169.3 cms, but has been wrongly awarded 18 marks for the height of 179.3 cms during the recruitment test and consequent upon which his total marks in PET combined together has come to 38 instead of deserved 32 marks. If the candidate would not have wrongly awarded extra 6 marks for his height, he could not qualify for appearing the written test and subsequent recruitment process considering the minimum qualifying marks (35) out of allotted 58 marks required to score a candidate of SC/ST/SEBC categories for that purpose. Excluding the wrongly awarded extra marks, his total marks also falls short 2.12 marks to the cut-off mark i.e. 51.75 required for selection of a SEBC category candidate."
9. On the basis of above report, it is made clear that the petitioner deserves 12 marks against his actual height of 169.3 cm, but has been wrongly awarded 18 marks for the height of 179.3 cm during the recruitment test. If the factual aspect is admitted, then the petitioner has got more than requisite height. In the advertisement, the minimum height of 168 cm was required, whereas the petitioner has 169.3 cm, but wrongly it has been mentioned as 179.3 during // 10 // recruitment test for which he has been awarded 18 marks instead of 12 marks. But, in all total he was awarded with 58 marks. If the facts stated in the report are accepted, in that case, there will be difference of 18- 12=6 marks and if 6 marks is deducted from the total marks awarded in favour of the petitioner, then his total mark comes to 52. For SEBC category candidates, the minimum cut off mark has been fixed to 51.75, thereby the petitioner has also secured more than the cut off mark. Therefore, there is no occasion on the part of the authority not to accept the joining report of the petitioner having allowed him to participate in the subsequent process of selection, as per the advertisement issued under Annexure-1. Consequentially, the entire action of the authorities is violative of principles of promissory estoppel.
10. Needless to say, as per advertisement, the minimum requirement of height for SEBC category candidates is 168 cm and the petitioner has fulfilled the // 11 // eligibility criteria, but the authorities have wrongly assessed 179.3 cm and allowed him to participate in the written test and issued appointment letter in his favour. Accordingly, he submitted his joining report, but pursuant to which he was not allowed to work. But fact remains, the fault, which has been found out in the proceeding of Fireman Recruitment Board 2013, a copy of which has been annexed as Annexure-A to the counter affidavit filed on behalf of opposite parties no.1 to 4 also relevant portions has been extracted above, it is evident that the fault cannot be attributable to the petitioner. During the course of measurement of height, so far as petitioner is concerned, his height was recorded by the authorities as 179.3 cm. Therefore, the petitioner has fulfilled the minimum requirement of 168 cm height, as per the advertisement. As such, merely because the Officer-in-Charge of re-checking team observed that the height of the petitioner is 169.3 cm was found 10 cm less than the height recorded during the recruitment test for the reasons mentioned in the // 12 // proceeding, non-acceptance of his joining report cannot have any justification and, as such, the entire action of the authority is in gross violation of principle of estoppels.
11. The principle of promissory estoppel has been considered by the apex Court in Union of India v. M/s. Anglo Afghan Agencies etc., AIR 1968 SC 718; Chowgule & Company (Hind) Pvt. Ltd. v. Union of India, AIR 1971 SC 2021; M/S. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, AIR 1979 SC 621; Union of India v. Godfrey Philips India Ltd., AIR 1986 SC 806; Delhi Cloth & General Mills Ltd. v. Union of India, AIR 1987 SC 2414; Bharat Singh v. State of Haryana, AIR 1988 SC 2181 and many other subsequent decisions also.
12. In Ambika Prasad Mohanty v. Orissa Engineering College, 1989(1) OLR 440, the Division Bench of this Court has already held that a student admitted after satisfying all qualifications, subsequently // 13 // his admission is cancelled and he cannot prosecute his studies elsewhere, rule of estoppel is applicable.
13. This Court in Dr. (Smt.) Pranaya Ballari Mohanty v. Utkal University, 2014 (I) OLR 226 has come to a finding that the action taken at belated stage by the University after lapse of 20 years of publication of the result is hit by the principle of estoppel.
14. Similar view has also been taken by this Court in Rajanikanta Priyadarshy v. Utkal University, represented through its Registrar, 2015 (I) OLR 212, wherein this Court held that the result of +3 Final Degree (Regular) Examination, 2010 of the petitioner therein having been published and on that basis he has already undergone higher studies and passed in different courses, subsequently his initial result cannot be cancelled on the ground that he has failed in the said examination.
// 14 //
15. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikhya Sahayak, pursuant to decision of the district administration, having found qualified in the selection process and appointed after resigning from her erstwhile post of Anganwadi Worker and having worked for six to eight months, amounts to putting the petitioner in prejudical and disadvantageous position and the reason assigned for later finding the petitioner not suitable for securing less marks than other meritorious candidates do holds good, the petitioner cannot be found faulted by the mistake committed by the appointing authority in calculating the percentage. Consequentially, direction was given to absorb the petitioner forthwith applying the doctrine of promissory estoppel in the said case.
16. So far as the judgment relied upon by the learned Standing Counsel for the State in Upendra Narayan Singh (supra) is concerned, on examination, // 15 // it is found that the factual matrix of the said case is not applicable to the present case and, as such, the same is distinguishable.
17. The cumulative effect of the judgments mentioned as above clearly reveals that if due to wrong recording of height of the petitioner by the authority as 179.3 cm, in place of 169.3 cm, 18 marks have been awarded instead of 12 marks, that itself cannot disentitle the petitioner from getting the appointment and, as such, non-acceptance of his joining report, pursuant to the proceeding of Fireman Recruitment Board 2013, is in gross violation of the principles of natural justice and is hit by doctrine of promissory estoppel. As a matter of fact, the petitioner has also satisfied the minimum requirement of height, i.e. 168 cm, as required in the advertisement under Annexure-
1. On the other hand, if the excess 6 mark is deducted from the allotted 58 marks, still then the petitioner has secured 52 marks, which is also above the cut off mark // 16 // i.e. 51.75 meant for SEBC candidates. Thereby, the petitioner, having qualified for the post by following due procedure of selection, the authority cannot deny to accept his joining report submitted on 01.01.2014, pursuant to appointment letter issued on 29.12.2013.
18. In view of such position, this Court directs the opposite parties to accept the joining report of the petitioner submitted on 03.01.2014 and allow him to discharge his duty as Fireman, pursuant to selection made in compliance of the advertisement issued under Annexure-1 dated 18.04.2013 as expeditiously as possible, preferably within a period of two months from the date of communication of the judgment.
19. In the result, the writ petition is allowed. However, there shall be no order as to costs.
As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment // 17 // available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.
.............................
DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 23rd June, 2021, Alok