Dr. Anil Kumar Sahu vs State Of Odisha & Others . Opp. Parties on 23 February, 2024

[Cites 3, Cited by 0]

Orissa High Court

Dr. Anil Kumar Sahu vs State Of Odisha & Others . Opp. Parties on 23 February, 2024

1. This Writ Petition has been filed by the Petitioner with a prayer to quash letter dated 17.02.2022 under Annexure-4 and letter // 2 // dated 30.07.2022 under Annexure-8 and for a direction to the Opposite Parties to correct the answer key prepared by OPSC for the written test examination conducted on 06.05.2018 for recruitment to the post of Dental Surgeon in Group-A (Junior) of Odisha Medical Service (Dental Cadre under the Health and Family Welfare Dept.) as per the report of the Expert Committee and to re- evaluate the answer script of the Petitioner on the basis of the aforesaid correction in key answers and thereafter to recommend the name of the Petitioner to the Government for appointment as Dental Surgeon in Group-A (Junior) pursuant to Advertisement No.15 of 2017-18 by OPSC.

W.P.(C) No.24199 of 2022

2. Records reveal that the above noted writ application has been filed with a prayer to quash letter dated 17.02.2022 under Annexure-4 and letter dated under 30.07.2022 Annexure-8 quashing and for correction the key answers prepared by the OPSC (Opposite Party Nos.2 & 3) for the written test examination conducted on 06.05.2018 for recruitment to the post of Dental Surgeon in Group-A (Junior) as per the report of the Expert Committee. Further, it has also been prayed that pursuant to such correction of key answer the answer script of the Petitioner be re- evaluated and on the basis of such re-evaluation the name of the // 3 // Petitioner be re-commended to Government for appointment pursuant to Advertisement under Annexure-1 to the writ application with a further direction to the Government to appoint the Petitioner as Dental Surgeon in Group-A (Junior).

3. On a careful scrutiny of the prayer made in both the above noted writ applications as well as on a careful analysis of the pleadings of both the writ-Petitioners, this Court observes that the pleadings as well as the prayer made in both the writ applications are almost identical. Accordingly, both the matters were tagged and taken up for hearing together. For the sake of convenience, the facts involved in W.P.(C) No.21495 of 2022 is being taken up for analysis of the factual background involved in both the writ applications.

4. The factual background leading to filing of W.P.(C) No.24195 of 2022, in gist, is that the Petitioner named in the present writ application completed his Bachelor of Dental Surgery (BDS). After completion of BDS Course, the Petitioner was searching for a job opportunity. The Petitioner came across the Advt. No.15 of 2017-18 dated 17.03.2018 published by the Secretary, Odisha Public Service Commission (in short and hereinafter referred to as OPSC) for recruitment to the post of Dental Surgeon in Group-A (Junior) of Odisha Medical Service // 4 // (Dental Cadre) under the Health and Family Welfare Dept. Pursuant to the said advertisement the online application forms were available till 07.04.2018 as per the Advt. dated 17.03.2018 under Annexure-1 to the writ application the vacancy position are as follows:- UR-126 (38-W), SC-29 (8-W), ST-43(13-W). In total 198 posts of Dental Surgeon Group-A (Junior) were advertised to be filled up pursuant to the Advertisement under Annexure-1. The method of selection as prescribed in the advertisement is that 30% weightage shall be given to career marking, whereas the written test to be conducted by OPSC shall carry 70% mark. Further, such Advertisement specifically provides for qualifying mark for each category of candidates. So far UR and SEBC are concerned, the qualifying mark was fixed at 50%, whereas for PwD candidates 45% and SC/ST candidates 40%. The total mark assigned to the written test is 200. Accordingly, total 200 questions were set in Multiple Choice Questions (MCQ) pattern with a further stipulation that no negative mark shall be awarded for wrong answer.

5. Pursuant to the aforesaid Advertisement under Annexure-1 and in view of the terms and conditions contained therein, the Petitioner along with other eligible candidates submitted their application form along with required documents and the examination fee of Rs.300/- was paid through online mode for // 5 // recruitment to the post of Dental Surgeon Group-A (Junior). Such application was submitted within the stipulated time. Accordingly, the OPSC issued the Admit Card to the Petitioner as well as other candidates whose application form were accepted and found to be in order with a further intimation to the candidates to appear in the written examination to be conducted on 06.05.2018. Pursuant to such intimation, the Petitioner along with other eligible candidates apperared in the written examination held on 06.05.2018. After the examination, the petitioner was satisfied with his performance. After the examination got over, the Petitioner and other eligible candidates were provided with a copy of the answer script.

6. While this was the position, the Special Secretary of the OPSC published a notice in the website on 20.06.2018 which includes the names of a total number of 193 candidates including the Petitioner and further inviting them for verification of their documents. The Petitioner was also noticed to appear for verification of document. Pursuant to such notice, the Petitioner appeared for document verification and on production of such document by the Petitioner, the same was also verified by the OPSC and the OPSC found such documents are in order. The notice dated 20.06.2018 inviting selected candidates for verification of original documents was subject to the condition that the candidature // 6 // of the selected candidates is purely provisional. Further, such candidature is liable to be rejected in the event of inadequacy/ deficiency found at any stage before or after the verification of original documents and the same shall also be subject to fulfillment of other terms and conditions as laid down in the advertisement under Annexure-1 to the writ petition.

7. After the verification of the documents, pursuant to notice dated 20.06.2018, on 28.06.2018 and 29.06.2018, the OPSC issued another notice on 09.08.2018 informing that the OPSC has recommended the names of the 171 candidates as per the final list enclosed in the order of merit for appointment to the post of Dental Surgeon in Group-A (Junior) of Odisha Medical Service (Dental Cadre). On 18.08.2018, the OPSC published the mark secured by each candidate in written examination in their official website. Such intimation through the official website also reveals the cutoff mark fixed by the OPSC for selection of the candidates to the advertised post. The cutoff mark for Male-UR Category is 189.558, for SC- 131.673, for ST-120.740, Female-UR Category is 188.366, for SC- 129.904, ST-125.027 and for handicapped category-146.835. The OPSC on 28.08.2018 also published the answer key to the written examination.

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8. From the pleadings in the writ petition, it appears that the Petitioner on examination of the answer key found that certain answers are not correct. To re-affirm the finding, the Petitioner consulted some of the teaching faculty and experts having expertise in the subject. Such teaching faculties and experts unanimously were of the view that some of answer key provided by the OPSC are wrong. It has also been asserted in the writ application that in the opinion of such experts 15 answers supplied in the answer key of OPSC are wrong. Thereafter, the Petitioner made a representation before the OPSC with a prayer to correct the aforesaid 15 key answers. Along with his representation the Petitioner also provided the copies of the textbooks and journals which he has been relying upon in support of his contention that the key answers provided by the OPSC are wrong. A further prayer was also made in the representation for re-evaluation of his answer paper. In the body of the writ application, the Petitioner has provided the details of the 15 key answers provided by the OPSC which are claimed by the Petitioner to be wrong, along with supporting reference. This Court at this juncture deems it proper not to go deep into such details provided in body of the writ application.

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9. On perusal of the writ application, this Court found that the Petitioner has referred to order dated 15.11.2021 and order dated 26.11.2021 passed by this Court in WPC(OAC) No.2542 of 2018 and a batch of other cases. On perusal of order dated 15.11.2021, it was observed that the Coordinate Bench while disposing of the previous writ application directed the OPSC to open the report of the Expert Committee and to consider the candidature of the Petitioner along with similarly situated other candidates in terms of the said report submitted by the Expert Committee within a period of two months. It further appears that during the pendency of the said writ application the OPSC, on the basis of complaints made by several candidates, had set up an Expert Committee and such Committee had submitted its report on 05.10.2018.

10. Similarly, as per order dated 26.11.2021 passed in WPC(OAC) No.2730 of 2018, which has been marked as Annexure-3 to the present writ application, the learned Coordinate Bench had disposed of the said writ application with an identical direction as was given vide order dated 15.11.2021 in WPC (OAC) No.2542 of 2018.

11. Furthermore, after disposing of the above noted writ application, the Secretary, OPSC vide office order dated 17.02.2022 has intimated the Petitioner and others that pursuant to the aforesaid // 9 // orders passed by the learned Coordinate Bench of this Court, the Commission has considered the case of the applicants by scrutinizing the answer books in the light of the Expert Committee report. On such consideration, the cutoff mark in respect of finally selected candidates for UR (M) category is 189.558 and in respect of UR (F) category is 188.366. Since the six candidates including the Petitioner as mentioned in the said order have secured less mark than the cutoff mark their names have not been recommended for appointment.

12. In reply to the aforesaid contention of the OPSC, the Petitioner has taken a stand that the OPSC has not considered the case of the Petitioner in the light of the Expert Committee report as directed by the Coordinate Bench earlier. It was also contended by the Petitioner that although it was alleged that 15 key answers are wrong, however, a copy of the Expert Committee report was not provided to the Petitioner and the answer script of the Petitioner has not been re-evaluated on the basis of such Expert Committee report. In reply to the cutoff mark as communicated vide OPSC letter dated 17.02.2022, the Petitioner has alleged that although the Petitioner was intimated that the cutoff mark in respect of finally selected candidates for UR (M) category is 189.588 and for UR (F) is 188.366 and on the basis of the recommendation of the OPSC the // 10 // Government has issued appointment letter on 09.03.2019 in respect of Dr. Sreeprada Dash in UR(F) category and Dr. Debashish Sahoo in UR (M) Category, who have secured 188.108 mark and 187.934 marks respectively. As such it was alleged that the cutoff mark intimated to the Petitioner vide letter dated 17.02.2022 is absolutely misleading. It was further alleged on behalf of the Petitioner that the cutoff mark which was intimated to the Petitioner vide letter dated 17.02.2022 is an attempt by the OPSC to avoid and not to give effect to the orders passed by this Court in the earlier writ application.

13. It has also been alleged in the writ application, that due to non-compliance of order dated 26.11.2021 as has been discussed hereinabove, the Petitioner approached this Court by filing CONTC No.1805 of 2022. This Court vide order dated 22.04.2022 while disposing of the said contempt application, granted another opportunity to the Opposite Parties-Contemnors to comply with order dated 15.11.2021 within a further period of one month. The order dated 22.04.2022 was duly communicated to the Contemnor- Opposite Parties. Whereafter, the Chairman, OPSC informed the Petitioner vide memo dated 30.07.2022 that pursuant to the order passed by this Court the merit list was re-visited and on such re- consideration only Dr. Suman Tripathy petitioner in WPC (OAC) // 11 // No.2542 of 2018 was found eligible and the remaining 5 petitioners including the present Petitioner were not found eligible as they have secured less mark than the cutoff mark in terms of the Expert Committee report dated 05.10.2018.

14. After receiving a copy of order dated 30.07.2022, the Petitioner vide letter dated 08.08.2022 requested the OPSC to provide a copy of the Expert Committee report dated 05.10.2018 and the mark secured by the Petitioenr after such re-evaluation. However, despite such request by the Petitioner, he was not provided with the information sought for through his representation dated 08.08.2022. Since the order passed by this Court earlier, including the one in the contempt application, was not complied in letter and spirit, the Petitioner was constrained to approach this Court by filing another contempt application bearing CONTC No.5354 of 2022. This Court on 05.09.2022 disposed of the said contempt application by granting liberty to the Petitioner to file a separate writ application. Accordingly, the present writ application has been filed by the Petitioner.

15. In the present writ application, the Petitioner has specifically alleged that despite the earlier directions by this Court, the OPSC has not re-evaluated the answer script of the Petitioner and similarly situated other candidates in the light of the Expert // 12 // Committee report. Further, it has been alleged that without carrying out the order passed by this Court, the OPSC has, in a hurry, again communicated its decision to the Petitioner to show that they have complied with the orders passed by this Court and to avoid action under the Contempt of Court's Act. The Petitioner also alleged reckless conduct on the part of the OPSC while preparing the final merit list and as such it was further alleged that the OPSC which is constitutional body has been playing with the career and future of the Petitioner and similarly situated qualified dental doctors.

16. Mr. Samal, learned counsel appearing for the petitioner submitted that although 198 vacancies were advertised and accordingly, 193 number of candidates were invited for document verification, however, the OPSC has recommended only 171 candidates. He further contended that despite specific assertion by the Petitioner that 15 key answers are wrong, the OPSC has not re- evaluated the answer script of the Petitioner on the basis of such allegation and also on the basis of the Expert Committee report. He further contended that the Petitioner has specifically mentioned about the 15 wrong answers along with the supporting journals and references. He further alleged that the OPSC to hide the mistakes and errors committed by them are not supplying copies of the Expert Committee report. It was also alleged by him that the key // 13 // answers are demonstratively wrong as has been stated in great detail in body of the writ application. As such it was contended that the conduct of the OPSC so far the present petitioner is concerned is highly illegal, arbitrary and erroneous, accordingly, the same is liable to be quashed.

17. A counter affidavit has also been filed on behalf of the Opposite Party Nos.2 & 3. In the said counter affidavit, the Opposite Party Nos.2 & 3 have categorically admitted that advertisement No.15 of 2017-18 was published for recruitment to the post of Dental Surgeon in Group-A (Junior) of Odisha Medical Service (Dental Cadre) to fill up the 198 vacancies. It has also been mentioned that there is no vacancy so far SEBC category is concerned. The Opposite Party Nos.2 & 3 have also admitted that the written test for recruitment was conducted on 06.05.2018 and by following the due procedure the Commission has finalized the result on the basis of the key answer submitted by the eminent question setters. Basing on such final result, the Commission had recommended names of 171 candidates that have been finally selected for appointment by the Government vide their notice dated 09.08.2018. Subsequently, 5 candidates i.e. 4 from UR category and 1 from SC category from the original merit list were also recommended to the Government in 2019 due to non-joining of 5 // 14 // selected candidates. With regard to filing of the cases by some of the unsuccessful candidates, such as the Petitioner, the facts pleaded in the counter affidavit are almost identical to that of the writ application. Therefore, for the sake of brevity the same is not reiterated here again.

18. In the counter affidavit, the Commission has specifically stated that on the basis of the complaint received, the Commission appointed another Expert Committee and such Expert Committee on due scrutiny submitted its report on 05.10.2018. In the counter affidavit, the Opposite Parties have referred to the order dated 15.11.2021 and order dated 26.11.2021 and have further stated that on the basis of such orders, the Commission considered the candidature of the Petitioner and similarly situated other candidates in terms of the answer book submitted by the question setter by taking into account the report of the Expert Committee and accordingly found that none of the Petitioner are eligible for recommendation.

19. It has also been stated in the counter affidavit that pursuant to the orders passed by this Court in the earlier round of litigation the Commission re-visited the earlier merit list in terms of the Expert Committee report dated 05.10.2018 and a revised cutoff mark of different category was published. On the basis of such // 15 // revised cutoff mark, the Commission recommended name of Dr. Suman Tripathy for appointment to the advertised post as she was found to have secured more marks than the revised cutoff mark fixed by the Commission. So far Dr. Anil Kumar Sahu is concerned (Petitioner in the present writ application), he had secured 192.002 mark which is lower than the revised cutoff mark fixed for UR (M) category i.e. 192.558. As such his name was not recommended by the Commission against the UR vacancy. Although in para-12 of the Counter affidavit, it has been specifically admitted that the Petitioner who had earlier secured 187.002 mark, had secured 192.002 mark after his answer script was re-visited in the light of the Expert Committee report. Such presentation of fact in para-12 also reveals that admittedly the cutoff mark which was earlier 189.558 was also revised to 192.558. In such view of the matter, it has been stated in the counter affidavit that since the Petitioner has not secured marks above the revised cutoff mark, his name has not been recommended to the State Government for appointment.

20. An additional counter affidavit was filed on 09.01.2023 by the Opposite Party Nos.2 & 3 wherein it has been stated that the merit list was published after taking into consideration the Expert Committee-A with the pre-revised cutoff mark. Thereafter, after receiving grievances from the Petitioner and five other candidates // 16 // another Expert Committee was constituted to examine the correctness of the key answer such committee has been referred to as Expert Committee-B which had submitted its report on 05.10.2018. It has been specifically asserted in the Additional counter affidavit that the case of the Petitioner and similarly situated other candidates were assessed pursuant to the order passed by this Court on the basis such report submitted by Expert Committee-B basing upon its report dated 05.10.2018 and on the basis of the revised cutoff mark as suggested by the Expert Committee-B and in para-10 of the additional counter affidavit a table containing the details in respect of six candidates have been provided.

21. On the basis of the report submitted by the Expert Committee-B, the results of all candidates selected were re-visited and re-assessed by OPSC. Upon such re-examination it is found eight candidates who were selected earlier, yet their name did not find place in the revised select list and similarly eight candidates who were not selected earlier, were included in the revised merit list. Furthermore, out of the eight selected candidates in the earlier select list and whose name does not find place in the revised merit list, three candidates out of such eight candidates have already been recommended to the Government for appointment. From balance // 17 // five candidates name of Dr. Suman Tripathy has also been recommended in compliance to order dated 15.11.2021 passed by this Court. Para-13 of the Additional counter further reveals that since the remaining four candidates have not made any representation for their appointment and have not approached the Court of law, their cases have not been considered. It further reveals that, in the event such four remaining candidates made a representation in future, Government may consider their appointment against the prospective vacancies.

22. A rejoinder affidavit has also been filed on behalf of the Petitioner. In the said rejoinder affidavit it has been stated that the Expert Committee has found key answer to 14 questions are wrong. Although the Petitioner has been called for verification of document as he was found eligible in the first merit list, and he was within the 193 candidates whose list was published by OPSC initially as against 198 advertised posts. Accordingly, the OPSC committed an illegality by not recommending the name of the Petitioner. It has also been stated in the rejoinder that the intimation dated 17.02.2021 was without revisiting the answer script of the Petitioner in terms of the Expert Committee report as well as not in consonance with the orders passed by this Court. It has also been stated that in the earlier writ application, this Court had specifically // 18 // directed to consider the candidature of the Petitioner on the basis of the Expert Committee report with regard to the wrong key answers.

23. However, the Opposite Party Nos.2 & 3 while revising the marks of the Petitioner on the basis of the Expert Committee have also revised the cutoff mark which was neither directed by this Court nor the same is permissible under the law. The details with regard to the 14 incorrect key answers as has been reported by the Expert Committee has also been extracted in the rejoinder affidavit. With regard to the fixation of cutoff mark, it has been stated in the rejoinder that vide letter dated 17.02.2022, the OPSC specifically communicated to the petitioner that the cutoff mark is fixed for UR (M) Category is 189.558. Accordingly, the OPSC has selected and recommended name of one Debasis Sahu in UR(M) category, who had secured 187.934 marks. It has also been stated that although the Petitioner had secured 192.002 mark, the OPSC has committed an illegality by not recommending the name of the Petitioner to the Government for appointment.

24. Heard Mr. U.K. Samal, learned counsel for the Petitioner along with Mr. S.P. Patra, learned counsel and Mr. P.K. Mohanty, learned Senior Counsel along with Mr. P. Mohanty, learned counsel appearing for the Opposite Party Nos.2 & 3. Perused the pleadings of the parties as well as the documents annexed thereto.

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25. Mr. U.K. Samal, learned counsel appearing for the Petitioner contended before this Court that initially the advertisement under Annexure-1 was published on 17.03.2018 for recruitment to 198 Dental Surgeon post in Group-A (Junior) Odisha Medical Service (Dental Cadre). After conclusion of the written examination test, the OPSC on 20.06.2018 issued notice to the 193 candidates including the Petitioner for verification of their documents. Accordingly, the Petitioner submitted his documents for verification which were found to be in order by the OPSC. On 09.08.2018, the OPSC recommended names of 171 candidates to the Government for appointment although documents in respect of 193 candidates were verified as against the total vacancies of 198 posts. He further contended that the process of document verification is the last stage before recommendation of name and issuance of appointment order. He further contended that although the Petitioner's name was included in the list of 193 candidates who finally qualified in the written examination and was called upon for document verification, however, finally his name was excluded and finally names of 171 candidates were recommended to the Government by the OPSC. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties have // 20 // violated the provisions of the rules as well as the terms of the advertisement while conducting the recruitment process.

26. Learned counsel for the Petitioner further argued that 15 key answers were found to be wrong by the Petitioner and which have been narrated in detail in body of the present writ application. Complaining such error in key answer, six candidates including the petitioner approached the OPSC to correct the key answer and re- evaluate their answer papers by filing the representation, along with their representation they also provided the books, journals, references in support of their contention.

27. Mr. Samal, further contended that on receipt of such representation, the OPSC had set up an Expert Committee to examine the key answer and such Expert Committee has submitted a report on 05.10.2018. Pursuant to the report of such Expert Committee, the OPSC did not take any step for re-evaluation of answer paper of the Petitioner. Therefore, the Petitioner initially approached the learned Odisha Administrative Tribunal. After abolition of such Tribunal, the matter was transferred to this Court and a Coordinate Bench of this Court had earlier disposed of the previous writ application vide order dated 26.11.2021 with a specific direction to the OPSC to open the Expert Committee to consider the candidature of the Petitioner and similarly situated // 21 // candidates within two months. However, the OPSC vide letter dated 17.02.2022 communicated to the Petitioner and similarly situated five other candidates that they have secured less marks than the cutoff mark and as such they were found unsuitable for appointment.

28. Further, referring to the counter affidavit filed by the Opposite Party Nos.2 & 3, learned counsel for the Petitioner contended that in para-12 of the counter affidavit it has been specifically stated that the Petitioner has secured 192.002 marks and the cutoff mark was revised to 192.558. Although cutoff mark was earlier fixed for UR (M) category is 189.558 which is evident from Annexure-4 to the writ application. He also referred to Additional Counter affidavit filed by the Opposite Party Nos.2 & 3 wherein they have stated that the candidature of the Petitioner and similarly situated other candidates were considered and since, they have secured less mark than the revised cutoff mark i.e. 192.558, their cases were not recommended to the State Government for appointment.

29. In course of his argument, learned counsel for the Petitioner by referring to the Additional Counter Affidavit, particularly Para- 10 thereof submitted before this Court that the OPSC has appended a table containing the name of the six candidates who were left out // 22 // despite having been called for document verification and the mark secured by such candidates. Further, referring to such table, learned counsel for the Petitioner submitted that the OPSC has admittedly revised the mark secured by the Petitioner and five others in terms of the Expert Committee report, however, they have committed an illegality by revising the cutoff mark. In the aforesaid context, learned counsel for the Petitioner also contended that it is no more open to the OPSC to change the goal post while the game is on. In order to substantiate his argument, he submitted that 171 candidates were considered and recommended for appointment basing on the pre-revised cutoff mark.

30. So far the present Petitioners are concerned, the Opposite Parties while revising the marks secured by the Petitioner and five others have also revised the cutoff mark. Such revision of cutoff mark at a belated stage is not permissible under the rules as well as the law governing the field. He further contended that all the candidates have to be tested with an identical yardstick. Learned counsel for the Petitioner emphatically submitted that on the basis of the table appended to para-10 of the additional counter, it appears that Dr. Sanjay Kumar Panda, Dr. Anil Kumar Sahu, Dr. Suman Tripathy and Dr. Krishna Nanda have secured more mark, than cutoff mark fixed earlier in respect of 171 candidates.

// 23 // Therefore, the OPSC has committed an illegality by not recommending the name of the Petitioner for appointment.

31. Learned counsel for the Petitioner further contended that the OPSC has adopted a completely unknown procedure by re- fixing the cutoff mark. The cutoff mark which was initially fixed for UR(M) category was revised by the OPSC without any basis and the OPSC has failed to provide any justifiable reason in its counter with regard to such revision of the cutoff mark. He further contended that earlier 171 candidates were recommended on the basis of the pre-revised cutoff mark. However, while considering the case of the Petitioner pursuant to the order passed by this Court, the cutoff mark was revised. Therefore, the Opposite Parties have changed the yardstick with regard to selection of the present petitioner and similarly situated other candidates who had earlier approached this Court. He further contended that change of such cutoff mark is not permissible while the selection process is continuing, particularly keeping in view the fact that some of the candidates were earlier recommended on the basis of the pre- revised cutoff mark and while considering the case of the Petitioner the cutoff mark was revised and enhanced. Therefore, the conduct of the Opposite Parties in the present case, would not pass the test // 24 // of the doctrine of level playing field and as such the same would be hit by article-14 and 16 of the Constitution of India.

32. In course of his argument, learned counsel for the Petitioner further submitted that subsequent evaluation of the answer script of the Petitioner in the light of the Expert Committee report is not in consonance with the order passed by this Court earlier in the previous writ application. In the earlier round of litigation, a Coordinate Bench of this Court had categorically directed to consider the candidature of the Petitioner by taking into consideration the Expert Committee report. Furthermore, the necessity of setting up such an Expert Committee arose on the basis of the complaint made by the Petitioner with regard to erroneous key answers. Therefore, the learned counsel for the Petitioner submitted that while re-evaluating the answer script of the Petitioner, the opposite Parties should have confined their re- evaluation to the mistakes pointed by the Expert Committee in the key answer and accordingly on such basis the answer script should have been re-evaluated instead of changing/ revising the cutoff mark fixed earlier.

33. In such view of the matter, it was alleged that such re- evaluation is not strictly in terms of the order passed by this Court. He also contended that the assertion of the OPSC with regard to re-

// 25 // evaluation of answer script of other candidates was not directed by this Court. However, the OPSC in order to create confusion has adopted a very strange procedure only with the intention to deny the legitimate claim of the present Petitioner to get an appointment pursuant to an advertisement under Annexure-1 once he was initially declared qualified in the written examination. He further argued that taking into consideration the revised mark of the Petitioner i.e. 192.002 and keeping in view the cutoff mark fixed earlier i.e. 189.558, the Petitioner is found to be suitable and accordingly, his name should have been recommended and by not recommending the name of the Petitioner, the Opposite Parties have committed a gross illegality in the matter.

34. In course of his argument, learned counsel for the Petitioner also referred to the judgment of the Hon'ble Supreme Court in Mohinder Singh Gill & anr. vs. The Chief Election Commissioner, New Delhi & ors. reported in 1978 (1) SCC 405. Referring to para-8 of the aforesaid judgment, learned counsel for the Petitioner submitted that when the statutory authority makes an order based on a certain ground, its validity must be judged by the grounds so mentioned in the order itself and that no ground can be supplemented subsequently to support the order by filing subsequent affidavit or otherwise. Otherwise, the same would result // 26 // in validating an order subsequently on the additional grounds provided by the authority subsequent to the decision itself and the same is precisely not permissible under the law. In the light of the aforesaid law laid down by the Hon'ble Supreme Court in Mohinder Singh Gill's case (supra), learned counsel for the Petitioner contended that the decision taken by the Opposite Parties in rejecting the candidature of the Petitioner on supplemental/ additional grounds is unsustainable in law.

35. Learned counsel for the Petitioner further contended that there exists four vacancies as per the additional affidavit filed by the OPSC. Further, the said additional affidavit also reveals that since the Petitioner has not approached the OPSC, their cases have not been considered and that in the event, the Petitioner approached the Government in future, their cases may be considered against such vacancies. In such view of the matter, learned counsel for the Petitioner submitted that it is not disputed by the Opposite Parties that four vacancies still exist. Further, referring to State of Orissa & anr. vs. Dr. Asim Kumar Mohanty & ors. reported in (1989) 3 SCC 549, learned counsel for the Petitioner submitted that the objection of the State Government, that there may be more meritorious candidates who have not come forward to raise their claim, has been ruled out by the Hon'ble Supreme Court and // 27 // accordingly the respondent-doctor was allowed to take admission. Finally, learned counsel for the Petitioner submitted that there is no rationale behind fixing two sets of cutoff marks, moreover, the same is not in conformity with the order passed by this Court in the earlier writ application. Since the Petitioner has secured more mark than the cutoff mark fixed earlier, the Opposite Parties have committed an illegality by not appointing the Petitioner against the vacant post.

36. Mr. P.K. Mohanty, learned Senior Counsel appearing for the OPSC on the other hand contended that the Opposite Party No.2-OPSC has not committed any illegality in rejecting the claim of the Petitioner and similarly situated other candidates. He submitted that pursuant to the advertisement under Annexure-1 many candidates submitted their candidature and accordingly, they were asked to participate in the recruitment process. Pursuant to such recruitment process and on the recommendation of the Expert Committee, the names of 171 candidates were recommended to the Government for appointment. Such recommended candidates have secured more mark than the cutoff mark. Although, learned counsel for the Opposite party No.2 did not dispute the fact that the present Petitioner and the writ-Petitioners in other connected matter were initially summoned for verification of documents. However, on // 28 // verification, the OPSC has recommended 171 candidates who were found eligible.

37. It was also contended by Mr. Mohanty, learned Senior Counsel appearing for the Opposite Party No.2, that on the basis of the allegation received by the Petitioner and similarly situated other candidates an Expert Committee was set up to examine such allegations with regard to wrong key answers. The Petitioners and similarly situated other candidates initially approached this Court for a direction to the Opposite Party No.2 to re-evaluate their answer scripts on the basis of the Expert Committee. He further contended that pursuant to the order passed by this Court in the earlier writ application, cases of all the candidates were re- examined on the basis of such Expert Committee report dated 05.10.2018.

38. In his submission, learned Senior Counsel appearing for the Opposite Party No.2 submitted that two speaking orders were passed pursuant to the order passed by this Court earlier. One on 17.02.2022 in compliance to order 15.11.2021 wherein the cutoff mark has been shown as 189.558 for UR (M) category and 188.366 for UR (F) category which is basically the pre-revised cutoff mark. Thereafter, another speaking order was passed on 30.07.2022 in compliance order to order 15.11.2021 & 22.04.2022 passed by this // 29 // Court in the writ application as well as in the contempt application. In the subsequent speaking order, the candidature of the present Petitioner along with the other similarly situated candidates were considered in terms of the Expert Committee report. Consequently, the cutoff mark was revised and was fixed at 192.558 for UR (M) category and 192.423 for UR (F) category and accordingly a revised merit list was published.

39. In course of his argument, he also referred to the table appended to para-10 of the additional counter affidavit. To impress upon this Court that on the basis of the revised cutoff mark the Petitioners were not eligible for appointment except Dr. Suman Tripathy, who has already been given appointment in the meantime. He further contended that the petitioners should not have any grievance as their cases have been considered on the basis of the Expert Committee report and by taking into consideration the suggestions of the Expert Committee with regard to wrong answer key, the marks initially awarded to the petitioner have been revised. However, on the basis of such revised mark, the Petitioners were found not eligible by OPSC as they have not secured more mark than the cutoff mark. Therefore, the Commission has not committed any illegality by not recommending the names of the Petitioners for their appointment. He further emphatically submitted that the // 30 // Commission has implemented the orders passed by this Court in letter and spirit and as such the impugned orders under Annexure-8 passed by the OPSC pursuant to this Courts order are unimpeachable and valid in law.

40. In course of his argument, learned Senior counsel appearing for the Opposite Party No.2 specifically admitted that there exists four vacancies. However, since the Petitioners have not approached the Commission and no order has been passed by any Court, their cases have not been considered by the Commission. He further contended that in the event the petitioners made any representation in future, the Government may consider their appointment against the prospective vacancies. Accordingly, learned Senior Counsel appearing for the Opposite Party Nos.2 & 3 submitted that the above noted two writ applications do not call for any interference by this Court and accordingly, the same should be dismissed.

41. Having heard the learned counsels appearing for the respective parties and on a careful consideration of the arguments advanced by both sides and upon a scrutiny of their respective pleadings as well as materials on record, this Court observed that most of the factual aspects of the matters remains undisputed by both sides like the date of advertisement for filling of the posts of Dental Surgeon in Group-A (Junior) of Odisha Medical Service // 31 // (Dental Cadre), 198 posts were advertised to be filled up, the OPSC after conducting recruitment test initially published a select list consisting 193 names out of which 171 candidates were recommended by the OPSC vide notice dated 09.08.2018 and that the persons named in aforesaid notified list of 171 candidates have been given appointment in the meantime. Thereafter, the OPSC recommended names of five other candidates vide notification dated 09.03.2019. Further, perusal of the record also reveals that pursuant to the order passed by this Court in WPC (OAC) No.2730 of 2018 and WPC (OAC) No.2334 of 2018 as well as in a series of contempt applications, the OPSC examined the case of six remaining candidates including the present Petitioners. After such re-examination vide order dated 30.07.2022 only one Dr. Suman Tripathy was found eligible by OPSC for appointment and the cases of the Petitioners were not considered as it was found they have secured less mark than the revised cutoff mark in terms of the Expert Committee report dated 05.10.2018.

42. In view of the aforesaid factual background, this Court in the present writ application is required to examine the fact as to whether the Petitioners have passed in the recruitment test conducted pursuant to the under Annexure-1 by the OPSC and on // 32 // such basis they are eligible to be declared, selected and accordingly be appointed as Dental Surgeons as has been done in the case of similarly situated other candidates pursuant to Advertisement under Annexure-1 to the writ application.

43. On a careful analysis of the materials on record, this Court found that the advertisement was initially published on 17.03.2018 by the OPSC thereby advertising to fill up the post of Dental Surgeon and the total number that was initially indicated was 198. Accordingly, the Petitioner along with other similarly placed eligible candidates participated in the recruitment process. On conclusion of the recruitment process initially, the OPSC published a list of 193 candidates including both the petitioners on 20.06.2018 for verification of documents. Although the Petitioners appeared for verification of their respective documents by the OPSC, finally, the OPSC on 09.08.2018 recommended only 171 candidates against total advertised vacancies of 198 candidates. The names of the petitioners and similarly situated other candidates were not recommended since the petitioners were held to be not qualified on the basis cutoff mark fixed initially by the OPSC. Moreover, since the OPSC did not publish the key answer for recruitment test, as such the Petitioners were not very sure whether they have cleared // 33 // the written examination or not. While this was the position, on 20.08.2018, the OPSC published the key answer and on going through the said key answer, it was detected by the petitioners that 15 key answers are wrong. Therefore, the Petitioner and others first approached the OPSC with a prayer to rectify such mistake and accordingly to re-evaluate the answer paper of the petitioners. Thereafter, the OPSC constituted the Expert Committee body on 05.10.2018. The Expert Committee so constituted, examined the objections raised by the Petitioner and similarly situated other candidates pursuant to the order passed by this Court.

44. On 17.02.2020 the OPSC examined answer scripts of all similarly situated candidates. Upon such examination, it was found that there are errors in the key answers and the marks awarded to the Petitioner and similarly placed persons were revised. While revising the marks awarded to the petitioner, the Opposite parties also revised, the cutoff mark which was fixed earlier to consider eligibility of 171 candidates whose name had earlier been recommended by the OPSC. On the basis of such revised cutoff mark, the OPSC intimated that only Dr. Suman Tripathy was found to be eligible and other 5 candidates including the Petitioner were not selected and their names were not recommended to the Govt.

// 34 // for appointment. This Court would also like to observe here that many posts are lying vacant as OPSC had initially advertised to fill up total 198 posts of Dental Surgeons.

45. On a careful consideration of the cutoff mark fixed for the written examination, this Court observed that initially the cutoff mark for UR (M) category was fixed at 189.558, however, the same was revised subsequently. On the advice of the Expert Committee and the same was re-fixed at 192.558. Since the Petitioner had secured 192.002 mark after re-evaluation and the same was found to be below the revised cutoff mark i.e. 192.558 the name of the Petitioner has not been recommended by the OPSC to the Government for such appointment. However, this Court is indeed perplexed to observe as to how the OPSC could recommend the names of Dr. Sreepada Dash (187.934) and Dr. Debashish Sahoo (188.108). No satisfactory explanation is coming forth from the OPSC side.

46. On a query being put to the learned Senior counsel appearing for the OPSC by this Court, learned Senior Counsel appearing for the OPSC submitted that cutoff mark has been revised on the basis of the suggestion given by the Expert Committee set up by the OPSC. No further explanation is coming // 35 // forth from the side the OPSC to justify the revision of the cutoff mark after conclusion of the entire recruitment process. In the aforesaid background, this Court is of the considered view that the OPSC should not have revised the cutoff mark from 189.558 to 192.558. Further, this Court feels that the OPSC after re-evaluation of the petitioners and similarly placed other persons' answer script should have applied the revised cutoff mark fixed earlier and on such basis the case of the Petitioners and similar other persons should have been assessed. This is more so, in view of the well settled proposition of law that the rules of the game cannot be changed when the game is on. In the present case the rules of the game were certainly changed after the game is over. In such view of the matter, this Court has no other option than to hold that the revision of the cutoff mark is illegal and arbitrary and the same is unsustainable in law.

47. Moreover, with regard to the fact that the name of the Petitioners were initially included in the list of 193 candidates as against 198 advertised posts as alleged by the Petitioners, the same has not been specifically disputed and denied by the OPSC. Further, pursuant to the order passed by this Court, the OPSC has filed an additional affidavit on 09.01.2023 wherein they have specifically // 36 // indicated that the cutoff mark was revised on the advice of the Expert Committee. This Court is of the considered view that even the Expert Committee set up by OPSC is not competent to change the cutoff mark once the same has been fixed and on such basis the selection has been made and the names of the candidates have been recommended to the Government for appointment. Moreover, the table appended to para-10 of the additional affidavit reveals that Dr. Anil Kumar Sahu-Petitioner in W.P.(C) No.24195 of 2022 has secured 192.002 marks and Sanjay Kumar Panda-Petitioner in W.P.(C) No.24199 of 2022 has secured 191.210 marks after re- evaluation of the marks. Since both these two petitioners have secured more marks than the cutoff mark fixed earlier i.e. 189.558, by the OPSC, the OPSC should have recommended their names to the Government for their appointment as admittedly all the advertised posts were not filled up even after conclusion of the recruitment process. Such table also indicates that the cutoff mark was fixed at 192.558 as per Expert Committee-B report. The same according to this Court is an illegality committed by the OPSC as they could not have revised the cut off mark after the recruitment process was over.

// 37 //

48. The decision of the Expert Committee to revise the cutoff mark which has been accepted by the OPSC, appears to be devoid of sound reasons. Moreover, on perusal of counter affidavit as well as additional affidavit, filed on behalf of the OPSC, this Court found that the Opposite parties have failed to provide any reason as to why cutoff mark was revised subsequently that too after the recruitment process was over and after the names of 171 selected candidates were recommended to the Government for appointment and by the time such revision took place such 171 candidates were already appointed. Keeping in view the principle laid down by the Hon'ble Supreme Court in the constitution bench in Mohinder Singh Gill & anr. vs. The Chief Election Commissioner, New Delhi & ors. reported in 1978 (1) SCC 405, this Court is of the view that the action of the OPSC, a constitutional body, should have supported by reasons while passing the impugned rejection order. No supplementary reasons in the shape of subsequent affidavit are to be accepted and admitted. The aforesaid principle which has been well accepted in the legal circle derives its origin from the landmark judgment of the Hon'ble Supreme Court in the case of Commissioner of Police, Bombay vs. Gordhandas Bhanji reported in AIR 1952 SC 16. The views of the constitution bench judgment in Mohinder Singh Gill's case has been re-affirmed by the // 38 // Supreme Court in Gordhandas Bhanji's case (supra). In such view of the matter, by applying the aforesaid test to the facts of the present case, this Court is also of the considered view that the conduct of the Opposite Parties in rejecting the candidature of the petitioner in both the writ applications is unjust, unfair and arbitrary. As such the same is liable to be quashed.

49. In view of the aforesaid analysis of facts as well as legal position, this Court is of the considered view that the impugned rejection order holding that the petitioners are found not eligible while considering the case of Dr. Suman Tripathy for appointment to the post of Dental Surgeon in Group-A (Junior) OMS (Dental Cadre) vide the order dated 30.07.2022, under Annexure-8 to the writ application, is hereby quashed. Further, the Opposite Party- OPSC is directed to recommend the two petitioners as they have secured more than cutoff mark. On such recommendation, the Opposite Party No.1 shall do well to appoint the Petitioner in the post of Dental Surgeon in Group-A (Junior) OMS (Dental Cadre) pursuant to the advertisement under Annexure-1 within a period of two months from the date of communication of a copy of this judgment. The appointment of the Dr. Suman Tripathy, shall stand as she has secured more mark than the cutoff mark. While // 39 // appointing the Petitioners, the Opposite Parties shall give seniority at par with their batch mates, however, the Petitioners shall not claim any back wages/ salary or other service benefits as they have not worked for such period.

50. Accordingly, both the writ applications are allowed in terms of the direction given hereinabove. However, there shall be no order as to cost.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 23rd of February, 2024/ Anil.

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 23-Feb-2024 19:58:49

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