Orissa High Court
Rashmi Ranjan Nayak vs Union Of India And Others on 18 August, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) Nos. 21058 & 21122 of 2012
In the matter of applications under Articles 226 & 227 of the
Constitution of India.
__________
In W.P.(C) No. 21058 of 2012
Rashmi Ranjan Nayak ......... Petitioner
Vrs.
Union of India & Others ......... Opposite Parties
For petitioners : M/s. Sisir Kumar Purohit, A.K. Das,
R.C. Pattanaik
For opp. Parties : M/s.S.D. Das, H.S. Satapathy,
A.N.Sahu, M. Panda, M.M. Swain,
S. Biswal, H.K. Behera
(Opp.Party nos.2 and 3)
M/s.S.S. Patra, D.K. Mohanty
(Opp.Party no.4).
M/s. B. Das, S.Chakravarty,
T. Sinha, S.K. Seth (Opp.Party no.5).
In W.P.(C) No. 21122 of 2012
Premananda Sethy ......... Petitioner
Vrs.
Paradip Port Trust & Others ......... Opposite Parties
For petitioners : M/s. S. Mishra-1, B. Dash, B. Mishra
For opp. parties : M/s.S.D. Das, H.S. Satapathy,
A.N.Sahu, M. Panda, M.M. Swain, S.
Biswal, H.K. Behera.
(Opp.Party nos.1 and 2)
2
M/s. S. Mishra, R. Mishra, D. Sahoo,
and B. Pani (For Opp.Party No.3)
M/s. G. Mishra, D.K. Patra.
(For Opp.Party No.4)
_____________________
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 27.07.2015 | Date of judgment :18.08.2015
Dr. B.R.Sarangi, J.The petitioners have filed this application challenging the selection and appointment of the private opposite parties as Lascar Grade-II pursuant to the advertisement dated 16.03.2012 issued by the Paradip Port Trust in Special Recruitment Drive on the ground that selection of such persons have been done contrary to the advertisement issued, inasmuch as new selection norms were introduced at the midst of the selection process, which violates selection criteria.
2. The short fact of the case, in hand, is that the Paradip Port Trust issued an advertisement on 16.03.2012 inviting applications from the Indian Nationals for filling up of some backlog vacancies under Special Recruitment Drive as per the terms and conditions given therein. The vacant posts were 1. Pilot, 2. Pharmacist, 3. Staff Nurse, 4. Asst. Hydrographic Surveyor, 5. Sr. Signalman, 6. Lascar Grade-II, 7. Attendant as advertised. The 3 petitioners in both the writ petitions applied for the selection to the post of Lascar Grade-II in scale of pay of Rs.8100-18200/- and were within the required age group. Petitioner in W.P.(C) No. 21058 of 2012 was one of the candidates belonging to OBC Category and whereas the petitioner in W.P.(C) No. 21122 of 2012, was one of the candidates for SC Category. The total nos. of posts advertised for Lascar Grade-II is SC- 2, ST-2 and OBC-2. The minimum qualification has been prescribed (1) the candidates must pass HSC Examination or equivalent (2) should know swimming and boat rowing (3) Preference will be given to the candidates having passed pre-sea training for Seaman/GP rating from a Govt. recognized institution. In the advertisement it was indicated that applications duly signed giving name, date of birth, permanent and present address, religion, caste, qualification starting from HSC with percentage of mark secured, caste certificate in the prescribed format and work experience with copies of all certificates along with two-passport size photographs should reach the Secretary, Paradip Port Trust, At/P.O.- Paradip Port, Orissa, Pin-754142 latest by 12.04.2012 with a further condition that the persons in the employment of Government/Semi-Government/PSU and autonomous body must apply through proper channel or produce a No Objection Certificate from the employer at the time of interview. 4 The application should be type written. Incomplete or late application will summarily be rejected. In compliance to such advertisement the petitioner in W.P.(C) No.21058/2012 applied for the post of Lascar Grade-II and his application having been found to be in order, the opposite parties called the petitioner to appear before the Service Selection Committee for personal interview/via- voce test on 18.10.2012. In the said letter, it was specifically mentioned that the petitioner will go for a Swimming Test at 9 a.m. and appear before the Service Selection Committee in the chamber of Deputy Conservator, Paradip Port Trust at 12 a.m. Pursuant to such call letter, the petitioner appeared before the Selection Committee at 18.10.2012 at 8 a.m. along with original certificates for verification and after completion of Swimming Test as per the Schedule, the opposite parties suddenly introduced written examination test, which was neither the criteria/norms for selection to the post of Lascar Grade-II pursuant to advertisement issued nor the candidates were intimated in their call letter to face such interview. Under compelling circumstances, the petitioner had to appear the written test and thereafter, he appeared before the Service Selection Committee in the chamber of the Deputy Conservator, Paradip Port Trust and got verified all his original qualification certificates and experience certificates. The petitioner 5 had also completed the Presea Training Course for Rating, forming part of Navigation and Engineering Watch from Orissa Maritime Academy, which is a Government recognized institution and as such he has to get preferential treatment pursuant to advertisement issued. He had also 5 years working experience in a shipping company as a G.P. Crew under the ownership and Control of Paradip Port Trust. Unfortunately without considering the preferential treatment to be given to the petitioner by virtue of experience and qualification acquired by him, the private opposite parties have been selected and appointed by opposite party no.2. Challenging such application, W.P.(C) No. 21058 of 2012 has been filed.
The petitioner in W.P.(C) No. 21058 of 2012, being „Gokha‟ by caste belonging to SC Category, passed H.S.C. Examination in Second Division in the year 1997 and thereafter registered himself in the District Employment Exchange, Kendrapara and undergone training of ten months course in „Deck and Engine rating‟ from the Crew Training Institute, Chandabali, Bhadrak for the period from 01.05.2001 to 28.02.2002. Subsequently, he has completed sixteen weeks‟ Pre-Sea Training Course for General Purpose (Deck and Engine) Rating (forming part of Navigation and Engineering watch) from 01.02.2003 to 30.06.2003. The said course is duly approved by the Directorate General of Shipping, Ministry of 6 Surface Transport, Government of India. He has also completed the Training Courses in "Personal Safety and Social Responsibility", "Fire Prevention and Fire Fighting", "Personal Survival Techniques" and "Elementary First Aid" from Yak maritime Academy Pvt. Ltd., Mumbai. He having duly qualified in the test for performance of navigation, a certificate was issued by the Government of India. He has also working experience in a Marine Company, namely ARC Marine Pvt. Ltd. temporarily and also acquired three years of experience as Seaman under a Marine Company, namely, D.P. World. Therefore, the petitioner having requisite qualification applied for the post of Lascar Grade-II in Paradip Port Trust in a special Recruitment Drive pursuant to the advertisement issued by the authority in Annexure-7 and the petitioner having satisfied the qualification prescribed therein for the post of Lascar Grade-II, he has been called for personal interview and viva-voce test held on 15.10.2012 pursuant to letter dated 19.09.2012 under Annexure-8. In the said selection the petitioner was not selected, rather, the party nos. 3 and 4 vide Annexure-9 dated 19.10.2012 have been selected. Challenging such selection of opposite party nos. 3 and 4, the petitioner has filed W.P.(C) No. 21122 of 2012.
3. Mr. S.K. Purohit, learned counsel appearing for the petitioner in W.P.(C) No. 21058 of 2012 urged that preferential 7 treatment which ought to have been given to the petitioner in consonance with the advertisement issued, has not been given in proper prospective, inasmuch as the petitioner had five years of working experience, where as the opposite party nos. 4 has one and half years working experience and the opposite party no.5 has two and half years experience. From the information obtained under the RTI Act with regard to selection which has been provided by the petitioner in Annexure-5 to the Misc. Case No. 6848 of 2013, it appears that out of 100 marks, 20 marks has been allocated for qualification, 15 marks for experience, 50 marks for written examination, and 15 marks for personal interview. Neither the advertisement issued by the authority nor call letter indicates that the petitioner has to appear at the written test. More so, the written test has been introduced after Swimming Test, was held on the date fixed which the authority could not have done after the selection process has started and such introduction of written examination in the midst of the selection process is contrary to the provisions of law. With regard to evaluation so far as experience is concerned, the petitioner having got five years of experience, he would have become no.1 and evaluation of marks for experience should have been done taking into account experience acquired by each of the candidates, but the opposite parties have awarded 15 marks to each 8 of the candidates on that count regardless of the year of experience each candidate has got to his credit by which they have treated unequals as equals, which violates Article 14 and 16 of the Constitution of India. He further submits that so far as the educational qualification and experience are concerned all candidates have been given equal mark of 35 uniformly which has been annexed as Annexure-6 to the Misc. Case No. 6848 of 2013. The minimum education qualification prescribed for the said post is H.S.C., but so far as experience is concerned, it varies from person to person. Therefore, awarding equal marks of 35 to all the candidates is out of non-application of mind. The selection has been done on the basis of total marks secured. Though the petitioner has secured 87.08 marks, the opposite party no.5 by securing 88.00 has been selected ignoring the experience of the petitioner and without considering the preferential treatment which he ought to have got under the advertisement itself. To substantiate his contention he has relied upon the judgment of the apex Court in K. Manjusree v. State of A.P. (2008) 3 SCC 512, Mrs. Madhumita Das and another v. State of Orissa and others, 100(2005) CLT 465.
4. Mr. S.N. Mishra, learned counsel appearing for the petitioner in W.P.(C) No. 21122 of 2012 though supported the stand of Mr. S.K. Purohit, learned counsel appearing for the petitioner in 9 W.P.(C) No. 21058 of 2012, he urged that the petitioner being „Gokha‟ by caste belonged to SC Category and satisfies the requirement of the advertisement and also received ten months training course in „Deck and Engine rating‟ from the Crew Training Institute, Chandabali, Bhadrak which is a Government of Orissa recognized Institute and also completed sixteen weeks of Pre-Sea Training Course for General Purpose (Deck and Engine) Rating (forming part of Navigation and Engineering watch) from Orissa Maritime Academy, Paradip which is a course approved by the Directorate General of Shipping, Ministry of Surface Transport, Government of India. He has also completed the Training Courses in "Personal Safety and Social Responsibility", "Fire Prevention and Fire Fighting", "Personal Survival Techniques" and "Elementary First Aid"
from Yak maritime Academy Pvt. Ltd., Mumbai. He has also qualified in test for performance of navigation and he was issued a certificate of competency by the Government of India. He was also engaged in ARC Marine Pvt. Ltd. and also acquired three years of experience as Seaman under a Marine Company, namely, D.P. World. While considering the case of the petitioner under the S.C. Category, the preference of ten years of experience has not been taken into consideration by the authority. But without doing so, the authorities have selected the opposite party nos. 3 and 4. It is urged that 10 neither the advertisement nor the call letter indicates that the petitioner has to undergo written test. In absence of such condition holding of written examination after selection process was started is arbitrary and unreasonable and therefore, the same is liable to be quashed.
5. Mr. S.D. Das, learned counsel for Paradip Port Trust states that the interview was conducted strictly as per the norms provided under the Recruitment Rules for the post of Lascar Grade- II which does not insist for experience of candidates being a lowest entry level Class-IV post in a Government Organization like PPT and owing to above and with a conception to maintain the records of the performance of the candidates in interview, some short questions and some questions to chose right answer from the group by the candidates were resorted to, instead of questioning the candidates verbally by the SSC Members to find out their basic knowledge about current maritime affairs, which cannot be termed as a written examination and the selection having been done as per the experience and performance, the action taken is well in consonance with the recruitment policy. Therefore, no illegality or irregularity has been committed by the authority. To substantiate his case, he has relied upon the judgment of the apex Court in Tej Prakash 11 Pathak and others v. Rajasthan High Court and others, (2013) 4 SCC 540.
6. Pursuant to notice, private opposite parties who have been selected, have entered appearance through their counsel, but did not appear at the time of hearing and the matter has been adjourned time and again. Consequently, taking into consideration, the contention raised by learned counsel appearing for the PPT, the matter has been proceeded for final disposal.
7. On the basis of the facts pleaded above and on perusal of the advertisement issued it appears that there is no provision for conducting written test for the post of Lascar Grade-II. It has been candidly admitted in the counter affidavit filed by opposite parties that with a conception to maintain records of the performance of the candidates in the interview, some short questions and some questions to chose right answer from the group by the candidates were resorted to, instead of questioning the candidates verbally by the SSC members, to find out their basic knowledge about current maritime affairs and therefore, it cannot be termed as written examination. If there is no condition stipulated in the advertisement or in the call letter issued to the petitioners for conducting the written examination, whether such methodology is permissible to the Service Selection Committee after process was on by the 12 authority. Apart from the same, the experience gained by the petitioners, have not been given proper weightage in the process of selection. Further the selection of the private opposite parties have been done without following the norms and conditions prescribed in the advertisement as well as in the call letters issued to the candidates.
8. In Mrs. Madhumita Das (supra) this Court held that change of the norms published in the advertisement without notice to the candidates and the general public, process of selection under the changed norms, is violative of Articles 14 and 16 of the Constitution of India. In the said case for recruitment of Adhoc Addl. District Judges, the authorities changed norms, published in the advertisement after the selection process started. This Court holding the same is violative of Article-14 of the Constitution of India, quashed the selection, which has been confirmed by the Apex Court.
9. Similar question came up for consideration in K. Manjusree (supra) where the selection to the post of District and Sessions Judge (Grade-II) governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958, was under consideration. The Rules prescribed for quota for direct recruitment, educational qualification etc. but did not prescribe any criterion for selection. After selection process was started, the Andhra Pradesh High Court 13 on its administrative side prescribed the criteria by fixing ratio between the written examination and interview as 3:1 instead of 4:1 and introduced minimum qualifying marks for the interview. Consequentially there was a reshuffling of selection list prepared by the High Court. The same was challenged before the Apex Court and the apex Court set aside the judgment of the Division Bench of the High Court and directed to prepare fresh merit list in regard to 83 candidates with reference to their marks in written test and interview without applying any minimum marks for interview. Referring to the above judgments, learned counsel for the petitioners strenuously urged that once the process of selection has been started, direction to hold written test is absolutely violative of Articles 14 and 16 of Constitution of India. More so, it is violative of the conditions stipulated in the advertisement itself. Mr. S.D. Das, learned counsel appearing for PPT states that K. Manjushree case referred to supra has been referred to a larger bench for authoritative pronouncement of as it has not considered the decision in Subash Chandra Marwaha (supra) pursuant to judgment of Tej Prakash (supra). Therefore, unless that matter is resolved by the apex Court in proper prospective, it cannot be construed that the action taken by the opposite parties is contrary to the provisions of law.
14
10. Considering the contention raised by learned counsel for the opposite parties it is apparently clear that till date K. Manjushree case referred to supra has not been overruled by the Apex Court, rather, the apex Court has considered the situations where the State sought to alter (1) eligibility criteria (2) method or manner of making selection of the suitable candidates.
11. In case of State of Haryana V. Subash Chandra Marwaha, (1974) 3 SCC 220 the Apex Court while dealing with the recruitment of Subordinate Judges of the Punjab Civil Services (Judicial Branch) had to deal with the situation where the relevant rule prescribed minimum qualifying marks. The recruitment was for filling up of 15 vacancies. 40 Candidates secured the minimum qualifying marks of 45 %. Only 7 candidates who secured 55 % and above marks were appointed and the remaining vacancies were kept unfilled. The State Government decided not to fill up the remaining vacancies in spite of the availability of candidates who secured the minimum qualifying marks was challenged. The State Government defended its decision not to fill up posts on the ground that the decision was taken to maintain the high standards of competence in judicial service. The High Court upheld the challenge and issued a mandamus. In appeal, the Apex Court reversed the decision and opined that the candidates securing minimum qualifying marks at an 15 examination held for the purpose of recruitment into the service of the State have no legal right to be appointed. But the same has not been taken into consideration in K. Manjushree (supra) and other similarly situated cases. In any case the fact of the said case does not apply to the present context, inasmuch as in this case the written test having been conducted contrary to the advertisement issued and recruitment rules governing the field to find out the suitability, the action of the authority is violative of Articles 14 and 16 of the Constitution of India. Until K. Manjushree(Supra) is overruled by the apex Court, the law laid down therein holds good and the same cannot be altered or changed in any manner whatsoever. It is made clear that the petitioners‟ preferential qualification has not been taken in to consideration while adjudging his suitability in conformity with the advertisement issued by the authority. It appears that the authorities have not given weighatage to the experience gained by the petitioners and no reasons whatsoever has been assigned therefor. Had the authorities taken into consideration the experience gained by the petitioners, then the result would have been different one.
12. In that view of the matter this Court is of the considered view that the action taken by the opposite parties is contrary to the provisions of Article 14 and 16 of the Constitution of India. The 16 selection process undertaken being contrary to the criteria mentioned in the advertisement is hereby quashed. Consequentially, the appointment of private opposite parties is hereby set aside. The authorities are directed to prepare a merit list afresh taking into consideration the educational qualification, experience and preferential qualification of the candidates as mentioned in the advertisement and if the petitioners are found suitable than any other candidates, they should be appointed.
13. The writ petition is accordingly allowed. No order as to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 18th August, 2015/Ajaya