Orissa High Court
Odisha Public Service Commission vs Priyambada Das And Others on 16 January, 2015
Author: Biswajit Mohanty
Bench: Pradip Mohanty, Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
W.P(C) No.16601 of 2014
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In the matter of an application under Articles 226 & 227 of the Constitution of
India.
Odisha Public Service Commission ......... Petitioner
-versus-
Priyambada Das and others ......... Opposite Parties
For Petitioner : Mr. Rajat Kumar Rath, Senior Advocate
M/s.Pradipta Kumar Mohanty,
D.N. Mohapatra, J. Mohanty,
P.K. Nayak, S.N. Dash &
A. Das.
For Opp. Parties : M/s. Dr. Ashok Kumar Mohapatra,
Alok Kumar Mohapatra,
Asit Kumar Dash, B. Panda,
S. Mohapatra, S.P. Mangaraj,
S. Mohanty, T. Dash,
S. Samal & S.K. Barik.
(for opposite party no.1)
: Mr. S.P. Mishra, learned Advocate General
(for opposite party no.2)
: M/s. Himansu Sekhar Mishra,
A.K. Mishra, A.K. Tripathy &
K. Badhi.
[for opposite party nos.4 &5 (interveners)]
: M/s. B.B. Mohanty, M.R. Harichandran,
Bikash Tripathy & B. Samantary.
[for opposite party no.7(interveners)]
: M/s. J. Patnaik, Senior Advocate,
B. Mohanty, S. Patnaik, R.P. Ray,
B.S. Rayguru & S. Pholgu.
[for opposite party nos. 8 & 9(interveners)]
2
: M/s. S.K. Padhi, Senior Advocate, S. Das
& K. Mohanty.
[for opposite party no.10(interveners)]
: M/s. Dhuliram Pattanayak, N.S. Panda,
N. Biswal & L. pattanayak.
[for opposite party no.11(interveners)]
: M/s. Sameer Kumar Das, S.K. Mishra &
P.K. Behera
[for opposite party nos.12 to 22(interveners)]
: M/s. B. Routary, Senior Advocate
S.K. Samal & R.P. Dalei
[for opposite party nos.23 to 24(interveners)]
P R E S E N T:
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Date of Judgment: 16 .01.2015
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Biswajit Mohanty, J. This writ application has been filed by the petitioner-
Odisha Public Service Commission, for short, "the OPSC" with a prayer
to quash the order dated 26.8.2014 passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No.2146(C) of 2014 under
Annexure-5.
2. Shorn of unnecessary details, the facts of the case are as
follows;
On 17.11.2011, Advertisement No.5 of 2011-12 was issued by
the OPSC inviting applications in prescribed Short Form from the
candidates for admission to the Odisha Civil Services Preliminary
Examination, 2011 for recruitment to the Posts and Services coming
3
under Odisha Civil Services (Category-I & Category-II) as mentioned
therein. In the said advertisement, it was made clear that the
Examination should be conducted in accordance with the provisions of
the Odisha Civil Services (Combined Competitive Recruitment
Examination) Rules, 1991, for short, "1991 Rules". It was made clear
that the relevant portion of the said Rules was available in the website of
the Commission. At Paragraph-15, advertisement also referred to the
Website of the Commission and informed the candidates to visit the
Website of the Commission for detailed information about programme of
examinations, etc. On 16.12.2011, a corrigendum to the above noted
advertisement was issued revising the number of vacancies. On
22.2.2012, vide Notice No.1138/P.S.C., the petitioner informed all
concerned that it (OPSC) had decided to implement a uniform Negative
Marking System in all competitive examinations having objective type
(multiple choice) questions where Answer Sheets were to be evaluated
through Computer (O.M.R. System). On 19.1.2014, the Preliminary
Examination was conducted. On 18.2.2014, vide Notice No.779/P.S.C.,
the petitioner published model answers to question papers in the
Website of OPSC inviting observations/comments from
candidates/general public online by 28.2.2014. On 1.5.2014, the
petitioner published correct model answers in respect of the subjects in
which observations/comments were received. It also published the
4
procedure for valuation of answer sheets in the Website of the
Commission. On the same date, i.e., 1.5.2014 vide Notice No.1838/PSC,
the petitioner published the results of Preliminary Examination. The said
notice made it clear that 5823 candidates have been provisionally
qualified/selected for admission to Odisha Civil Services (Main)
Examination and roll numbers of these candidates were available in the
Website of the OPSC. It also made clear that the selected candidates were
required to furnish the applications online through proforma application
form for the Main Examination. Vide Notice No.2052/P.S.C. dated
14.5.2014, it was notified by the petitioner that online applications for
applying to sit in the Odisha Civil Services Examination, 2011 would be
available till 20.6.2014. The last date for receipt of print-out/hard-copy
of online applications along with copy of specified documents/ certificate
was on 30.6.2014. It was also made clear that the petitioner had decided
to conduct the Odisha Civil Services Main Examination during
September, 2014. Vide Notice No.3349/P.S.C. dated 4.7.2014, the
petitioner, in consideration of difficulties faced by some candidates in
remote rural areas extended the last date for submission online
application form for admission to Odisha Civil Services Examination,
2011. Vide Notice No.3605/P.S.C. dated 10.7.2014, the petitioner
notified that it was going to conduct the Odisha Civil Services
5
Examination (Main Examination), 2011 from 6.9.2014 to 30.9.2014 at
five zones of the State.
3. It is at this juncture on 30.7.2014, one Priyambada Das
(opposite party no.1) filed O.A. No.2146(C) of 2014 before the learned
Tribunal with prayer that the learned Tribunal should set aside the grace
marks awarded by the OPSC in the Preliminary Examination and
accordingly, set aside the results of Preliminary Examination and OPSC
be directed to publish the result as per law by conducting fresh and
lawful evaluation. The present writ application arises out of the final
order dated 26.8.2014 passed by the learned Tribunal in O.A. No.2146(C)
of 2014.
4. In O.A. No.2146(C) of 2014, opposite party no.1 took the plea
that the evaluation of answer scripts in the Preliminary Examination has
been done by following an illegal practice of awarding grace marks in
order to favour a few candidates. According to opposite party no.1 while
in some optional subjects the grace marks have been given but in
optional subjects like, Psychology, Philosophy, Law, Anthropology and
Civil Engineering, no grace marks have been awarded. Further,
according to opposite party no.1 awarding of grace marks was not
provided under law. Thus, evaluation of answer scripts in the
Preliminary Examination was opposed to law and therefore, the results of
Preliminary Examination was illegal and void. Opposing the said prayer,
6
the petitioner filed its counter on 18.8.2014. In the said counter, the
petitioner inter alia took the stand since the candidates, who have
qualified in the Preliminary Examination to appear at the Main
Examination have not been impleaded as parties, the Original
Application be dismissed. The petitioner also submitted that for printing
mistakes or wrong questions, a candidate should not be burdened with
negative marking as he/she was not at fault. Accordingly, full marks
have been awarded to all the candidates for wrong questions or questions
having printing mistakes. The petitioner also took a stand that as per the
opinion of the Expert Committee, full marks and equal marks were
awarded against wrong questions uniformly. This system should not be
treated as award of grace marks as alleged by opposite party no.1. The
petitioner also took the stand that opposite party no.1 having
participated in the selection process cannot challenge the authority of
the Commission in formulating the procedure of evaluation as per the
principles evolved by it, which is its inherent prerogative. In its counter,
the petitioner also made it clear that opposite party no.1 herself had also
obtained full marks for the wrong questions in General studies and also
in Public Administration Paper. So, she was in no way prejudiced by this.
Thus, according to the petitioner, the Original Application was without
any merit and should be dismissed.
7
5. Opposite party no.1 filed an affidavit on 20.8.2014 before the
learned Tribunal stating therein that the petitioner was under legal
obligation to conduct examination as per "1991 Rules" and that giving
grace marks/extra marks/excess marks was not provided under the
Rules and as per opposite party no.1, the petitioner could not have acted
in violation of law and it should have acted only in accordance with law.
Thus, for acting beyond its jurisdiction Preliminary Examination results
were/are vitiated. It is important to note here that despite the plea taken
by the petitioner in its counter before the learned Tribunal relating to
non-joinder of successful candidates as parties, opposite party no.1 did
not implead the successful candidates or some of them before the
learned Tribunal. In such background, the order was reserved in O.A.
No.2146(C) of 2014 on 20.8.2014 and final order which has been
impugned in the present writ application was pronounced on 26.8.2014.
6. The learned Tribunal while pronouncing the final order in
O.A. No.2146(C) of 2014, framed the following three issues;
"(i) Whether OPSC is acting as per law and
procedures in allotting grace marks to candidates in
case of wrong/ambiguous/no option available/Double
Answer questions ?
(ii) Whether candidates, having gone through the
OCS (Preliminary) Examination, 2011 and surrendered
to the terms and conditions of the same, could
challenge the selection list of Preliminary Examination
after being unsuccessful therein ?
(iii) Whether the case suffers from the defect of
non-joinder of parties, since all successful candidates
8
of OCS (Preliminary) Examination, 2011 are affected
and have not been made parties ?"
7. On issue no.(i), the learned Tribunal came to hold that OCS
Examination was not like a school and college examination, where grace
marks were given for faulty questions in order not to jeopardize careers
of the students. But in OCS Examination, OPSC is trying to select
candidates based on their knowledge, power of analysis, reasoning and
competency in the subjects, he has selected. By awarding grace marks to
candidates for such faulty questions, OPSC is rewarding candidates for
faults of the question setters/ printers/ proof readers. Hence, grace
marks provided is not to judge candidate's competence, but to
compensate him for the incompetencies of those, who are part of this
process of conduct of the OCS Examination. This, according to the
learned Tribunal distorts measurement of relative competencies of all
candidates. Here candidates have to be judged based on material that
shows their knowledge, their power of analysis & reasoning and
analytical ability and not on other's incompetencies. Hence, the
evaluation of OPSC by granting grace marks to candidates for faulty
question is definitely not as per law as the statute never anticipated such
cases will ever arise. According to the learned Tribunal only option
available to OPSC was to proceed as per the ratio of judgment of Hon'ble
Supreme Court in the case of Andhra Pradesh Public Service
Commission v. K. Prasad & another (decided on 7.10.2013 in Special
9
Leave to Appeal (Civil) No.25157 of 2013), i.e., to delete the faulty
questions and prorate the marks to the maximum marks to enable
comparison among all candidates.
8. With regard to Issue No.(ii) the learned Tribunal held that
there was no estoppel against law and since awarding of grace marks for
faulty questions had not been declared in advance of the conduct of
Preliminary Examination by the OPSC, it could not be held that opposite
party no.1 have surrendered to the terms and conditions of the
advertisement and she could not question basis of the evaluation of
papers.
9. On Issue No.(iii), the learned Tribunal held that since the
basis of evaluation, i.e., grace marks for faulty questions has been
challenged here as a point of law and that could not prejudice the
selected candidates as the list based on faulty evaluation could not be
treated as a final list. Moreover only roll numbers of selected candidates
have been published and not names. Accordingly, the learned Tribunal
quashed Annexure-3 of O.A. No.2146(C) of 2014 and consequential
action taken on that basis. In other words the learned Tribunal set aside
the results of Preliminary Examination and further directed P.S.C to
calculate marks of candidates by eliminating the faulty questions and
negative marking and the marks be prorated to full marks and prepare
10
select list of candidates on that basis for appearing at the Main
Examination.
10 Challenging the above noted order of the learned Tribunal,
the petitioner has filed the instant writ application.
11. Heard Mr. Rajat Kumar Rath, learned Senior Advocate for the
petitioner-OPSC, Dr. Ashok Kumar Mohapatra, learned Senior Advocate
for opposite party no.1, Mr. S.P. Mishra, learned Advocate General for
opposite party no.2, Mr. H.S. Mishra, learned counsel for opposite party
nos.4 & 5 (interveners), Mr. B.B. Mohanty, learned counsel for opposite
party no.7 (intervener), Mr. J. Pattnaik, learned Senior Advocate for
opposite party nos.8 and 9 (interveners), Mr. S.K. Padhi, learned Senior
Advocate for opposite party no.10 (intervener), Mr. Dhuliram Pattanayak,
learned counsel for opposite party no.11 (intervener) Mr. Sameer Kumar
Das, learned counsel for opposite party nos.12 to 22 (interveners) and
Mr. B. Routrary, learned Senior Advocate for opposite party nos.23 and
24 (interveners).
Mr. Rajat Kumar Rath, learned Senior Advocate for the
petitioner submitted that though the result of Preliminary Examination
was passed on 1.5.2014, opposite party no.1 never objected to the same
though she had failed in the Examination and filed O.A. No.2146(C) of
2014 after about three months on 30.7.2014 at a belated stage when
date for OCS Main Examination has already been announced, in order to
11
create problems for large number of candidates, who were successful in
OCS Preliminary Examination. In this context, Mr. Rath submitted that
the conduct of opposite party no.1 would show that she had waived her
rights. In this context, Mr. Rath relied on a decision of the Hon'ble
Supreme Court in the case of B.L. Sreedhar and others v. K.M.
Munireddy and others reported in AIR 2003 SC 578. In this
background, the learned Tribunal should not have entertained the
Original Application filed by opposite party no.1. Secondly, Mr. Rath
submitted that though opposite party no.1 has filed O.A. No.2146(C) of
2014 with a prayer to quash Annexure-3 and also to set aside the result
of Preliminary Examination issued on the basis of Annexure-3 she never
cared to implead the successful candidates of OCS Preliminary
Examination as parties. On this ground alone, the learned Tribunal
should have thrown out the Original Application instead of deciding the
same hurriedly in absence of necessary parties like selected candidates.
He submitted that opposite party no.1 filed the Original Application on
30.7.2014 and the same was disposed of on 26.8.2014. In this context,
he relied on the decisions of the Hon'ble Supreme Court in the cases of
H.C. Kulwant Singh and others v. H.C. Daya Ram and others reported
in AIR 2014 SC 3083, Sadananda Halo v. Momtaz Ali Sheikh reported
in (2008) 4 SCC 619, R. Sulochana Devi v. D.M. Sujatha and others
reported in AIR 2005 SC 4152, Prashant Ramesh Chakkarwar v.
12
Union Public Service Commission and others reported in (2013) 12
SCC 489 and Suresh v. Yeotmal District Central Co-operative Bank
Limited and another reported in (2008) 12 SCC 558. Mr. Rath further
submitted that though there was a gap of about three months between
publication of results and filing of O.A. No.2146(C) of 2014 by opposite
party no.1, she never attempted to get the names of the successful
candidates from the petitioner. According to Mr. Rath, the candidates,
who were successful in the Preliminary Examination, result of which was
published on 1.5.2014, were necessary parties and reiterated that the
learned Tribunal has gone wrong in adjudicating the matter in absence of
necessary parties. Accordingly, Mr. Rath prayed for interference by this
Court in the final order dated 26.8.2014 passed by the learned Tribunal
in O.A. No.2146(C) of 2014. Thirdly, Mr. Rath pointed out that pursuant
to Notice No.779/P.S.C. dated 18.2.2014 by which P.S.C. published
model answers to the questions inviting observations/comments from
candidates of general public, opposite party no.1 never objected to that.
She also never submitted any objection to publication of correct model
answers and procedure for evaluation of answer sheets published in the
Website of OPSC on 1.5.2014. Even after result of Preliminary
Examination was published on 1.5.2014, she never made any objection.
Thus, on this basis also O.A. No.2146(C) of 2014 filed by opposite party
no.1 mainly attacking the select list on the ground of giving of grace
13
marks was also not maintainable. Fourthly, Mr. Rath with regard to
merits of the case submitted that as per settled principle of law, the
petitioner could adopt any reasonable method and according to him the
procedure adopted by OPSC in awarding full marks to the candidates in
case of wrong questions or faulty questions in an uniform manner was
reasonable and the same could not be faulted. In this context, Mr. Rath
relied on Prashant Ramesh Chakkarwar's case (supra). Lastly, Mr. Rath
submitted that since the order passed by the learned Tribunal in O.A.
No.2555(C) of 2014 was entirely based on the order passed in O.A.
No.2146(C) of 2014 and in case W.P.(C) No.16601 of 2014 was allowed
the basis for passing of the final order in O.A. No.2555(C) of 2014 would
go and for that reason no separate writ application has been preferred by
OPSC against the final order passed in O.A. No.2555(C) of 2014. In this
context, Mr. Rath relied on the decision in the case of Director of
Settlements, A.P. and others v. M.R. Apparao and another reported in
(2002) 4 SCC 638.
12. Dr. Ashok Kumar Mohapatra, learned Senior Advocate for
opposite party no.1 submitted that as per Schedule-II of "1991 Rules",
the marks obtained in the Preliminary Examination were not counted for
ranking and further candidates selected in the Preliminary Examination
have no right to be appointed as they were yet to clear the Main
Examination and Personality Tests. Further, according to Dr. Mohapatra
14
as per Note (ii) attached to Schedule-III of "1991 Rules" Preliminary
Examination was only a scrutiny test. In such background according to
him the candidates selected in Preliminary Examination, who would sit
in the Main Examination were not necessary parties to the case.
Secondly, Dr. Mohapatra submitted that moreover opposite party no.1
has mainly challenged the illegalities committed by the OPSC in granting
grace marks. In such background, there was no need to implead those
candidates, who were successful in the Preliminary Examination. In this
context, Dr. Mohapatra relied on the decisions of the Hon'ble Supreme
Court in the cases of B. Prabhakar Rao and others v. State of Andhra
Pradesh and others reported in AIR 1986 SC 210 and Rajesh Kumar
and others, etc. v. State of Bihar and others, etc. reported in AIR
2013 SC 2652,. Thirdly, Dr. Mohapatra submitted that the judgments
cited by Mr. Rath were all factually distinguishable. Thus, they have no
application to the present case. Lastly, with regard to direction for fresh
evaluation on pro rata basis given by the learned Tribunal, Dr.
Mohapatra supported the same and relied on the decision of Punjab &
Haryana High Court in the case of Jitender Kumar and another v.
Haryana Public Service Commission decided on 30.8.2012 in C.W.P.
No.10309 of 2012 and the decision of the Hon'ble Supreme Court
rendered in Andhra Pradesh Public Service Commission v. K. Prasad
and another decided on 7.10.2013 in Special Leave to Appeal (Civil)
15
No.25157 of 2013 and Pankaj Sharma v. State of Jammu and Kashmir
and others reported in (2008) 4 SCC 273.
It may be noted here that pursuant to this Court's order
dated 3.9.2014 some successful candidates of Preliminary Examination
intervened in this writ petition. While some of them supported the result
of Preliminary Examination published by the PSC and strangely, others
(opposite party nos.7,8,9 & 10) supported the impugned order passed by
the learned Tribunal without ever challenging the results of Preliminary
Examination.
13. Mr. J. Patnaik, learned Senior Advocate for opposite party
nos.8 and 9 (interveners), who were successful candidates defended the
impugned order without ever challenging the OPSC Preliminary merit
list. Mr. Patnaik tried to distinguish the judgments cited by Mr. Rath on
facts and contended that the selected candidates were not required to be
impleaded before the learned Tribunal. In this context, Mr. Patnaik relied
on the decisions of the Hon'ble Supreme Court in the cases of A.
Janardhana v. Union of India and others reported in AIR 1983 SC
769, Post Graduate Institute of Medical Education and Research and
another v. A.P. Wasan and others reported in AIR 2003 SC 1831 and
The General Manager, South Central Railway, Secunderabad and
another v. A.V.R. Siddhanti and others reported in AIR 1974 SC
1755. With regard to the direction of the learned Tribunal for evaluation
16
of pro rata basis, he relied on the decisions of the Hon'ble Supreme Court
in Vikas Pratap Singh's case (supra) and in Pankaj Sharma's case
(supra).
14. Mr. S.K. Padhi, learned Senior Advocate for opposite party
no.10, who is one of successful candidates, like Mr. Patnaik supported
the impugned final order and submitted that the selected candidates like
opposite party no.10 were not required to be impleaded before the
learned Tribunal as they could at best be described as proper parties and
not necessary parties. In this context, Mr. Padhi relied on the decisions
in Govt. of A.P.'s case (supra), in the cases of Joseph Leon v. Nidheesh
B. of Karnataka High Court decided on 8.8.2014 in OP (KAT) No.112 of
2014 (z) and Mr. S.K. Jain v. Mr. P.S. Gupta and others of Delhi High
Court decided on 14.3.2002, The General Manager, South Central
Railway, Secunerabad's case (supra) & Rajesh Kumar's case (supra). In
support of the direction of the learned Tribunal for pro rata evaluation,
Mr. Padhi relied on the decisions in Kanpur University's (supra), Pankaj
Sharma (supra), Vikas Pratap Singh's case (supra) and in the case of
Guru Nanak Dev University v. Saumil Garg and others reported in
(2005) 13 SCC 749 the decision of the Hon'ble Supreme Court rendered
in Andhra Pradesh Public Service Commission's case (supra) and RPSC,
Ajmer v. Santosh Kumar Sharma of Rajasthan High Court as decided
on 25.10.2013. Further, he contended that even assuming that the order
17
of the learned Tribunal was bad in law and therefore, was liable to be
quashed, still by quashing the judgment of the learned Tribunal, the
illegal decision of OPSC in awarding full marks would be revived. Such a
course was not open in view of the decision rendered in the cases of
Gadde Venkateswara Rao v. Government of Andhra Pradesh and
others reported in AIR 1966 SC 828, Maharaja Chintamani Saran
Nath Shahdeo v. State of Bihar and others reported in AIR 1999 SC
3609, Chandra Singh v. State of Rajasthan and another reported in
AIR 2003 SC 2889 and State of Uttaranchal through Collector,
Dehradun and others v. Ajit Singh Bhola and another reported in
(2004) 6 SCC 800. According to Mr. Padhi even as per parameters laid
down by the Hon'ble Supreme Court in the case of Udit Narayan Singh
Malpaharia v. Additional Member, Board of Revenue, Bihar and
another reported in AIR 1963 SC 786 the selected candidates can only
be described as proper parties not necessary parties. With regard to the
proper evaluation he relied on the decisions reported in the case of
Manish Ujwal and others v. Maharish Dayananda Saraswati
University and others reported in (2005) 13 SCC 744 and Guru Nanak
Dev University (supra). Mr. Padhi further submitted that when the
quantum of wrong questions differ from paper to paper the direction of
the learned Tribunal for pro rata evaluation was rational, reasonable,
legal and valid.
18
15. Mr. B.B. Mohanty, learned counsel for opposite party no.7,
who is one of the successful candidates, supported the final order passed
by the learned Tribunal like Mr. J. Patnaik & Mr. S.K. Padhi learned
Senior Advocates. Mr. Mohanty invited our attention to Clause-1, Clause-
8(ii), Note No.4 to Clause-11 and Note No.2 of Clause-14 of the
Advertisement and contended that the candidates selected in the
Preliminary Examination were provisionally selected and were thus not
necessary parties as Preliminary Examination was only a qualifying
Examination and their admission at all stages of Examination were
purely provisional. Thus, according to Mr. Mohanty no fault could be
found in the final order passed by the learned Tribunal. He relied on a
decision in the case of Narmada Bachao Andolan v. State of Madhya
Pradesh and another reported in AIR 2011 SC 1989 and tried to
distinguish the judgments cited by Mr. Rath, learned Senior Advocate for
the petitioner, by relying on Paragraph-59 of the said judgment as to how
the judgments are to be read. He also relied on the decision in the case of
Shankarsan Dash v. Union of India reported in AIR 1991 SC 1612 and
contended that the selected candidates did not have any right to the post
and inclusion of candidates in the merit list did not confer any right of
appointment on them. In such background, he contended that the
selected candidates of Preliminary Examination could not be described
as necessary parties and while answering Issue No.iii, the learned
19
Tribunal has rightly held that since it was deciding a point of law and
selected candidates can in no way be prejudiced as the list was based on
faulty evaluation.
16. Mr. H.S.Mishra, learned counsel appearing for opposite party
nos.4 and 5 (interveners) supported the 1st part of the direction of the
learned Tribunal and attacked the second part. Mr. D.R. Patnaik, learned
counsel for opposite party no.11 made general submission.
17. Mr. Rath, learned Senior Advocate for the petitioner in reply
to the submissions made by Dr. Mohapatra, learned Senior Advocate for
opposite party no.1, Mr. J. Pattnaik, learned Senior Advocate for opposite
party nos.8 and 9, Mr. S.K. Padhi, learned Senior Advocate for opposite
party no.10 and Mr. B.B. Mohanty, learned counsel for opposite party
no.7 and Mr. H.S. Mishra, learned counsel for opposite party nos.4 and 5
submitted that as per Schedule-II of "1991 Rules", the competitive
examination has three stages and each stage consisted of process of
selection and elimination. Inviting our attention to Rule 12(1) and
Paragraph-2 of Schedule-II of "1991 Rules", Mr. Rath contended that as
per the provisions made therein a person clearing the Preliminary
Examination acquired a right to appear in the Main Examination.
According to him, here what was at stake was not right to be appointed
but a right to sit in the Main Examination. Therefore, all the selected
candidates, who have been selected in the Preliminary Examination have
20
this right to sit in the Main Examination. Thus they were necessary
parties, who should have been heard by the learned Tribunal. In this
context, Mr. Rath relied on five decisions of the Hon'ble Supreme Court
as indicated earlier. He contended that it has been made clear by the
Hon'ble Supreme Court that if a party is likely to suffer from order of the
Court, he is a necessary party and such parties should be impleaded in
the petition and notice be served on them. According to him it has been
made clear by the Hon'ble Supreme Court that the parties who are
interested in a proceeding and would be affected thereby are not only
proper but are necessary parties. Thus, the persons, who are interested
in maintaining the regularity of the proceeding, are necessary parties. He
further stated that such decisions make it clear that all the parties in
whose favour the impugned order or notification has been passed
were/are necessary parties. According to him quashing of the
Preliminary Examination result without hearing the selected candidates,
who were necessary parties thus vitiated the entire proceeding before the
learned Tribunal. Secondly, he contended that opposite party no.1 moved
the learned Tribunal as her right to sit in the Main Examination got
affected by her failure in the Preliminary Examination. Therefore, before
the learned Tribunal she prayed that the result of Preliminary
Examination be set aside and results be published afresh by fair and
lawful evaluation with the hope that fresh evaluation would get back her
21
right to sit in the Main Examination. If opposite party no.1 has/had no
such right, she could not be described as a person aggrieved under
Section 19 of the Administrative Tribunals Act, 1985. Thus, Original
Application at her behest would not be maintainable. This right to sit in
the Main Examination of selected candidates have been affected by
passing of the impugned order without hearing them and this violated
the principles of natural justice. Further, according to Mr. Rath as per
Section 22(1) of the Administrative Tribunals Act, 1985, it is clear that
the learned Tribunal while discharging its functions should be guided by
the principles of natural justice. This has been violated as selected
candidates were not before the learned Tribunal to have their say.
Further, he submitted that though pursuant to the order dated 3.9.2014
passed by this Court some successful candidates have intervened
defending the merit list of Preliminary Examination, however, as per
settled principles of law the same was not enough. In this context, he
relied on the decision in Sadananda Halo's case (supra). According to Mr.
Rath, the selected candidates of Preliminary Examination who were
necessary parties should have got an opportunity at the stage of the
learned Tribunal itself. With regard to four successful candidates
(opposite party nos.7 to 10) out of 5823 selected candidates, who have
intervened here and were being represented by Mr. Pattnaik, Mr. Padhi
and Mr. Mohanty, Mr. Rath submitted that their pleas in defending the
22
impugned order should be ignored as they had never challenged the
results of the Preliminary Examination. Further 4 out of 5823 successful
candidates could not be said to represent the majority of the selected
candidates. Further he submitted that violation of principles of natural
justice by itself is a prejudice. Therefore, the learned Tribunal has gone
wrong in saying that the selected candidates would in no way suffer
prejudice. With regard to that he relied on the decisions in the cases of
Union Carbide Corporation etc. v. Union of India etc. reported in AIR
1992 SC 248, Mysore Urban Development Authority v. Veer Kumar
Jain and others reported in (2010) 5 SCC 791. Relying on the case of
Jayendra Vishnu Thakur v. State of Maharashtra and another
reported in (2009) 7 SCC 104, and, Rajasthan State Road Transport
Corporation and another v. Bal Mukund Bairwa(2) reported in (2009)
4 SCC 299, Mr. Rath submitted that once principles of natural justice
have been violated the order becomes a nullity. He also tried to
distinguish the judgments cited by Mr. Pattnaik, Mr. Padhi and Mr.
Mohanty saying that those judgments are factually distinguishable. He
also submitted that none has challenged the notice dated 22.2.2012
issued by the petitioner relating to coming into force of awarding of
negative marks. Lastly, he pointed out that despite liberty granted by this
Court opposite party no.1 did not sit in the Main Examination.
23
18. Supporting the contentions of Mr. Rath, Mr. B. Routrary,
learned Senior Advocate for opposite party nos.23 to 25 (interveners)
submitted that since they were successful in the Preliminary
Examination, they had a right to sit in the Main Examination as per
Rule-12 and Clause-2 of Schedule-II of 1991 Rules. He heavily relied on
the decision in Udit Narain Singh Malpaharia's case (supra) and
contended that his clients were/are necessary parties as they had been
directly affected by the impugned order. Further, he relied on the
decision in the case of All India SC & ST Employees' Association and
another v. A. Arthur Jeen and others reported in (2001) 6 SCC 380
and contended that even a person who had got his name included in the
provisional merit list/selection list had a substantive right and such a
right could not be tampered without hearing him. His clients have a vital
interest in defending the select list of Preliminary Examination, from
which their right to sit in the Main Examination flowed. In this context,
he relied on the decisions in the case of Prabodh Verma and others v.
State of Uttar Pradesh and others reported in AIR 1985 SC 167,
Public Service Commission, Uttaranchal v. Mamta Bisht and others
reported in AIR 2010 SC 2613 and J.S. Yadav v. State of Uttar
Pradesh and another reported in (2011) 6 SCC 570.
19. Mr. Samir Kumar Das, learned counsel appearing for 11
interveners, who have been arrayed as opposite party nos.12 to 22
24
submitted that his clients were all selected candidates of Preliminary
Examination. He invited our attention to the prayer made in O.A.
No.2146(C) of 2014. Thus, the prayer was made to set aside the select
list of Preliminary Examination. This being the prayer, the opposite party
nos.12 to 22 being the selected candidates were directly interested in the
out come of such a case and had there been a notice to them they would
have defended their position and the right flowing from Preliminary
Examination, i.e., to sit in the Main Examination. If pro rata evaluation
be allowed to be followed, his clients might lose their position in the
merit list. Therefore, they ought to have been heard and since the final
order has been passed behind their back, they have been greatly
prejudiced. In such background, like Mr. B. Routrary appearing for
opposite party nos.23 to 25, Mr. Das submitted that the writ application
filed by the OPSC deserved to be allowed. Secondly, he submitted that
the present matter revolves around the subject of recruitment to Odisha
Civil Services. As per the Notification issued by the Chairman under
Section 5(6) of the Administrative Tribunals Act, 1985 such subject
matter has been assigned to a Division Bench. Therefore, the acting
Chairman sitting singly should not have disposed of the matter
hurriedly. For this reason, the matter should be remanded to the learned
Tribunal for disposal afresh in accordance with law. Thirdly, he
submitted that as per the decision reported in the case of Dr. Mahabal
25
Ram v. Indian Council of Agricultural Research and others [(1994) 2
SCC 401], it had been made clear by the Hon'ble Supreme Court that
where questions of law were involved, the matter should be assigned to a
Division Bench of the learned Tribunal. A perusal of the impugned final
order, with regard to Issue No.iii would show that the learned Tribunal at
Paragraph-13 has recorded that the basis of valuation has been
challenged here as a point of law. In such background, the acting
Chairman should have referred the matter to a Division Bench. He
further submitted that the decision of the Hon'ble Supreme Court relied
by the learned Tribunal, i.e., Andhra Pradesh Public Service
Commission v. K. Prasad and another is factually distinguishable.
Therefore, according to him direction for prorated evaluation might not
be proper. He further submitted that had his clients been made parties,
they would have pointed out all these things so that the matter could
have been decided by a learned Division Bench. In any case he submitted
that great prejudice had been caused to his clients by their non-
impletion and accordingly, the writ application deserves to be allowed.
20. In order to appreciate the contention raised by Mr. Das,
learned counsel for opposite party nos.12 to 22 vide order dated
22.12.2014, this Court directed the Deputy Registrar, Orissa
Administrative Tribunal, Cuttack Bench, Cuttack and Registrar, Orissa
Administrative Tribunal, Principal Bench, Bhubaneswar to produce
26
Office Order, if any, issued before 26.8.2014 by the Chairman under
Section 5(6) of the Administrative Tribunals Act. Pursuant to the said
order Mrs. Mishra, Registrar, Orissa Administrative Tribunal,
Bhubaneswar appeared in person before this Court on 24.12.2014 and
filed the relevant Office Orders. As per the documents, it is clear that
prior to passing of the impugned order on 26.8.2014 by the learned
Tribunal, the last notification was issued by the order of Chairman on
28.9.2013. In fact on 28.9.2013 two office orders have been issued by
order of the Chairman. While one of the office order relates to categories
of case to be heard by a single Member Bench and the other one relates
to the categories of case to be heard by a Division Bench. This later order
covering Division Bench matters at Sl. 29 includes recruitment as a
Division Bench matter.
21. In reply to Mr. Das's contention based on Dr. Mahabala
Ram's case and Notification issued by the Hon'ble Chairman of the
learned Tribunal referred to above, Dr. Mohapatra submitted that a
Single Bench of the learned Tribunal can decide any illegality. In this
context, he relied on the decision in the case of Indermani Kirtipal v.
Union of India and others reported in AIR 1996 SC 1567, 2000 (2)
KLJ 341 of Karnatak High Court, 2001 (3) ALT 88 of Andhra Pradesh
High Court, 2003 (3) LLJ 203 of Madras High Court.
27
22. Mr. S.P. Mishra, learned Advocate General appearing for
opposite party no.2 supported the contention of the petitioner. He further
highlighted the problem of large number of vacancies.
23. Upon hearing the parties and on perusing the documents
including L.C.R., the following issues arise for consideration in this case.
1. Whether selected candidates of the Preliminary Examination
were required to be made parties before the learned
Tribunal?
2. Whether in view of office order dated 28.9.2013, a Single
Member Bench has/had authority to hear a matter relating to
recruitment when vide said office order, the Hon'ble
Chairman has clearly categorized, the same as a Division
Bench matter ? In other words whether the learned Single
Member has exceeded his jurisdiction in entertaining a matter
outside his province ?
3. Whether a person, who failed in the preliminary Examination
and who never objected to the said results and who never
objected to model answers published inviting
observations/comments, who never objected to procedure of
evaluation, can file an Original Application after three months
of the declaration of the result in the background of principles
of waiver and acquiescence ?
4. Whether the learned Tribunal has passed a proper order on
merits directing evaluation on pro rata basis ?
28
24. Coming to Issue No.1, let us scan the various averments and
prayer made by opposite party no.1 in the Original Application. At
Paragraph-3 of the Original Application opposite party no.1 makes it
clear that she challenges the illegal selection made in the Preliminary
Examination, 2011 by the OPSC by adopting wrong and illegal marking
procedure. At Paragraph-6.8 of the Original Application in the middle
portion opposite party no.1 clearly averred that the result of preliminary
examination of Orissa Civil Services Examination is illegal and void as
the OPSC has acted beyond jurisdiction in giving grace marks in the
answer scripts as evident from Annexure-3 by differential treatment
which is discriminatory and unconstitutional. Further, in the said
Paragraph it is averred that the approach of OPSC in giving grace mark
is per se illegal and nonest in the eye of law. If the root goes the super
structure falls. So the result of preliminary examination has been
vitiated, which is liable to be set aside. At Paragraph-6.9 opposite party
no.1 says she has a very good prima facie case to come out successful as
per her expectation, if fair evaluation will be made as per law. At
Paragraph-7 opposite party no.1 has made following prayer;
"7. That in view of the facts mentioned above the
applicant therefore prays that the Hon'ble Tribunal
should set-aside the grace marks adopted in
preliminary examination vide Annexure-3 and also set-
aside the result of preliminary examination on the
basis of Annexure-3 and direct to publish result as per
29
law by fair and lawfully evaluation and any other order
as deem fit be passed."
25. Thus one thing is clear that on one ground or another,
opposite party no.1 has averred that the result of the Preliminary
Examination conducted by the petitioner has been vitiated and
accordingly, she prayed for setting aside the result of preliminary
examination. As indicated earlier about 5823 candidates succeeded in
the preliminary examination. As per Rule 12(1) of 1991 Rules read with
Clause-II of Schedule-II of 1991 Rules, it is clear that the candidates
qualifying the Preliminary Examination shall only be called by the
Commission to appear in the Main Examination. Thus, the candidates,
who qualified in the Preliminary Examination got the right to appear in
the Main Examination. In such background, it is needless to say that the
selected 5823 successful candidates have a right to appear in the main
examination as per 1991 Rules, which is a rule made under Proviso to
Article 309 of the Constitution of India. Since the select list containing
roll nos. of 5823 successful candidates has been set aside by the learned
Tribunal, it clearly offends their right to sit in the Main Examination. As
per the law laid down by a 4-Judge Bench of the Hon'ble Supreme Court
in the decision in Udit Narayan Singh Malpaharia's case (supra), it is
clear that persons, who are going to be directly affected or against whom
relief is sought are necessary parties and they should be named in the
petition. It has also been made clear that the parties in whose favour an
30
order or notification has been issued and when the same order or
notification is challenged, the said parties are necessary parties. To the
same effect is the judgment of the Hon'ble Supreme Court in H.C.
Kulwant Singh's case (supra). Even as per the decision in the case of
Prashant Ramesh Chakkarwar's case, where results of the Civil Services
Main Examination was under challenge, the Hon'ble Suprme Court has
held that non-impletion of candidates selected in the Civil Service Main
Examination was fatal. It may be noted here that even though a
candidate selected in the Main Examination has no right to be appointed
at that stage, but has a right to appear in the interview. In All India SC &
ST Employees' Association's case (supra), the Hon'ble Supreme Court
has made it clear that the candidates, whose names are there in the
provisional selection even have interest/right in protecting and defending
that select list. A reading of decision rendered in Sadananda Halo's case
(supra) makes it clear that the Hon'ble Supreme Court was not satisfied
with the course of action taken by the High Court in inviting the
objections from the selected candidates, who were never bothered to be
made parties. In this context the decision cited by Dr. Mohapatra in B.
Prabhakar Rao's case (supra) is factually distinguishable. In that case
Ordinance was challenged and no relief was claimed against the
individuals. So far as the decision in Rajesh Kumar's case (supra) cited
by Dr. Mohapatra is concerned, the same is also factually
31
distinguishable. Though the court therein took note of non-impletion of
parties, no finding was recorded on its impact on account of the nature
of direction given by the Hon'ble Court at Paragraph 19(4) of the
judgment.
26. Now coming to the decision cited by Mr. Patnaik, learned
Senior Advocate on the point that the selected candidates were not
necessary parties, it can be said that those decisions are also factually
distinguishable. Mr. Patnaik relied on the decisions in A. Janardhana's
case (supra), Post Graduate Institute of Medical Education and
Research's case (supra) and The General Manager, South Central
Railway, Secunderabad's case (supra). These decisions do not refer to the
4-Judge Bench decision of the Hon'ble Supreme Court in Udit Narayan
Singh Malpaharia's case (supra). Further, in A. Janardhana's case
(supra), no relief has been claimed against individuals unlike the present
case. No seniority was also claimed there. Further, some direct recruits
had represented their case before the High Court. Unlike the present
case, in Post Graduate Institute of Medical Education and Research's
case (supra), Policy of Promotion was under challenge and in The General
Manager, South Central Railway, Secunderabad's case (supra)
constitutional validity of policy decision was under challenge. Further
there was no list/order fixing seniority. It is in such background, it was
held that non-joinder of parties, who were likely to be affected not fatal.
32
27. On this point, Mr. Padhi cited the decision of the Hon'ble
Supreme Court in The General Manager, South Central Railway,
Secunderabad's case (supra), Gadde Venkateswar Rao's case (supra),
Rajesh Kumar's case (supra), Joseph Leon's case of Kerala High Court
(supra), S.K. Jain's case of Delhi High Court (supra), which are all
factually distinguishable. These above noted decisions do not refer to the
4-Judge Bench decision in Udit Narayan Singh Malpaharia's case
(supra). We have already distinguished the decisions reported in The
General Manager, South Central Railway, Secunderabad's case (supra)
and Rajesh Kumar's case (supra) above. Now coming to the decision in
Gadde Venkateswar Roa's case (supra) unlike the present case, in that
case validity of rule was under challenge. So impletion was held not to be
necessary. In Joseph's case at least paper publication was made. In S.K.
Jain's case if not all some were impleaded as parties. So far as the
decision in Udit Narayan Singh Malpaharia's case (supra) is concerned,
Mr. Padhi tried to distinguish the same by advancing a submission that
here no right of the selected candidates have been finalized/crystallized,
therefore, they were not necessary parties. But as we have discussed
earlier here the right to sit in the Main Examination of successful
candidates of Preliminary Examination stood finalized by the Preliminary
Results. As per the decision in All India SC & ST Employees'
Association's case (supra) such selected candidates had every right to
33
defend and protect their position even in provisional select list. So far as
his reliance on the decision in Gadde Venkateswara Rao's case (supra),
Maharaja Chintamani Saran Nath Shahdeo's case (supra), Chandra
Singh's case (supra) and State of Uttaranchal through Collector,
Dehradun's case (supra) are concerned to buttress his submission that
an order should not be quashed to revive an illegal order, it can only be
said such arguments lies ill in the mouth of opposite party no.10, who
has not challenged the preliminary examination result himself as illegal.
Had opposite party no.10 been arrayed as a respondent by opposite party
no.1, we doubt whether he would have supported opposite party no.1
there instead of defending his position in the Preliminary Examination
merit list, which he is now attacking.
28. So far as the decision in Shankarsan Dash's case (supra) as
cited by Mr. Mohanty is concerned, in that case the matter related to
whether a person has right of appointment on being selected. Here issue
is not right of appointment but a right to sit in the OCS Main
Examination. On the principles relating to precedents as laid down in
AIR 2011 SC 1989, there exists no dispute as to their applicability.
29. Even otherwise as per Section 22 of the Administrative
Tribunals Act, 1985, the learned Tribunal while disposing of a case or
adjudicating a matter has to be guided by principles of natural justice.
One facet of such principle is that no body should be condemned
34
unheard. Here selected candidates, 5823 in number, have been
condemned unheard by setting aside their selection in their absence. For
all these reasons, we come to a conclusion that the selected candidates
are necessary parties and the learned Tribunal has gone wrong in
disposing of the matter without insisting on their presence in tune with
the principles of natural justice. As held in Prabodh Verma's case
(supra), the learned Tribunal ought not to have proceeded without
insisting on impletion of the selected candidates as respondents and/or
at least some of them being made parties in a representative capacity
and had the opposite party no.1 refused to do so, it would have
dismissed the Original Application for non-joinder of necessary parties.
30. Coming to the Issue No.2 relating to hearing of a matter by a
learned single Member Bench; as has been indicated earlier as per
Notification dated 28.9.2013, the Hon'ble Chairman in tune with the
requirement of Section 5(6) of the Administrative Tribunals Act, 1985 has
made it clear that matter relating to the recruitment is a Division Bench
matter. Secondly, in the impugned order itself while discussing Issue
No.iii, the learned Single Member Bench has observed that the matter
involves a point of law and in such background in tune with the
judgment of the Hon'ble Supreme Court in Dr. Mahabalaram's case
(supra), the matter should not have been disposed of by a learned Single
Member Bench and should have gone before a Division Bench. With
35
regard to the decision cited by Dr. Mohapatra, learned counsel for
opposite party no.1 in Indermani Kirtipal's case (supra) it may be noted
here that the said case is factually distinguishable. In the present case
successful candidates were not made parties before the learned Tribunal.
Mr. Das, learned counsel for opposite party nos.12 to 22 in his
submission made it clear that had they been made parties they would
have surely raised these issues and would have drawn the attention of
the learned Tribunal to the decision in Dr. Mahabal Ram's case (supra).
Further, there is no reference to Dr. Mahabala Ram's case, a 3-Judge
Bench decision Indermani Kirtipal's case (supra). Thirdly, from the facts
of the said judgment, it is not clear as to whether like in the present case
where Hon'ble Chairman has assigned the recruitment matter to a
Division Bench, whether in the said case there was any such Notification
for taking up promotion matter by a Division Bench. Further as has been
submitted by Mr. Das had his clients been made parties, he would have
raised that issue before the learned Tribunal. Simply because the
petitioners had not raised the issue would not go against his clients as
the rights of opposite party nos.12 to 22 to protect and defend the select
list from which their right to sit in the Main Examination flowed have
been taken away behind their back. Section 5(6) of the Administrative
Tribunals Act, 1985 provides that a Single Bench can only take up such
matters, which have been assigned to it by the Hon'ble Chairman. Here
36
as indicated earlier, the matter relating to recruitment was never
assigned to the single Member Bench by the Hon'ble Chairman. For all
these reasons we have no hesitation to hold that the order passed by the
learned Single Member Bench is wholly without jurisdiction. The
decisions cited by opposite party no.1 reported in 2000 (2) Karnataka
Law Journal 341, 2001 (3) ALT 88, (2003) 3 LLJ 203 are factually
distinguishable. In (2003) 3 LLJ since there was only one Member, i.e., a
Vice Chairman for the entire Tribunal, the High Court observed that the
matter can be heard by the said learned Single Member Bench though
the matters should have gone before a Division Bench because as per
settled principles of law, the Tribunal is the Court of first instance and
on the ground of doctrine of necessity. Here, it is nobody's case that on
the date of disposal the Odisha Administrative Tribunal was functioning
with one Member only. In 2001 (3) ALT 88 parties directly approached
the High Court and accordingly High Court directed to approach the
Tribunal first. In 2000 (2) KLJ 341, there is no reference to Dr. Mohabala
Ram's case. Further, here the point relating to hearing by Division Bench
has been raised by successful candidates, who were deliberately not
made parties before the Tribunal. Moreover, here clear cut notification to
refer the matter to a Division Bench is there. For all these reasons, we
hold that the learned Single Member had no jurisdiction to hear and
37
dispose of the Original Application and by doing so, he exceeded his
jurisdiction.
31. In view of our findings above, we do not think it proper to
discuss the other issues framed by us and those issues are left open.
Accordingly, without expressing any opinion on the merits of the case, we
set aside the order dated 26.8.2014 passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack and remit the matter to the learned
Tribunal with a request to dispose of O.A. No.2146(C) of 2014 in
accordance with law as expeditiously as possible preferably within a
period of three months keeping in mind the observations made by us
above. Further, in order to avoid multiplicity of litigation, we direct that
till disposal of O.A. No.2146(C) of 2014, no evaluation should be made of
OCS (Main) Examination papers. In order to expedite the matter, we
further direct the petitioner-OPSC to supply a sizeable number of names
and addresses of successful candidates of Preliminary Examination to
opposite party no.1, if a request is made to that effect, whereupon
opposite party no.1 would be at liberty to implead them in a
representative capacity as respondents before the learned Tribunal.
Before saying omega, we expect that the State Government and the
petitioner should make all endeavours to conduct Odisha Civil Services
Combined Competitive Recruitment Examination regularly every year
keeping in mind mandatory provision of "1991 Rules" in the background
38
of submission of the learned Advocate General relating to existence of
large number of vacancies.
A copy of the judgment be sent to the Chief Secretary, Government
of Odisha for his information and immediate necessary action.
32. The writ application is accordingly allowed with the above
noted observations. No costs.
LCR be sent back forthwith.
..................................
BISWAJIT MOHANTY, J.
Pradip Mohanty, J.I agree.
.................................. PRADIP MOHANTY High Court of Orissa, Cuttack Dated day of January, 2015/amit