Orissa High Court
Niranjan Pradhan vs State Of Odisha And Others ... Opposite ... on 5 May, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20806 OF 2019
(An application under Article 226 of the Constitution of India)
Niranjan Pradhan ... Petitioner
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Sangram Senapati,
Advocate
-versus-
For Opposite Party
Nos.1 to 3 : Mr.B.P.Tripathy,
A.G.A.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
05.5.2023.
Sashikanta Mishra,J. The Petitioner has filed this Writ Petition seeking the following relief;
<It is therefore, humbly prayed that this Hon'ble Court may be graciously pleased to issue Rule Nisi by calling upon the Opp. Parties to show cause as to why Page 1 of 9 the writ/writs shall not be issued in quashing the selection of the Opp.Party No.4 and the Notice dtd.21.10.2019 for counseling under Annexure-10 in respect of the Opp.Party No.4 for the B.A. Bed. Teacher post against the Physically Handicapped (PH) category and further be pleased to direct the Opp.Parties No.2 and 3 to select and appoint the petitioner in the B.A. Bed. Teacher post against the Physically Handicapped (PH) category in the Upgraded High Schools/girls High Schools, Kandhamal District and on perusal of causes shown if any or upon insufficient causes shown make the said rule absolute and may pass such other order/orders as deemed just and proper.=
2. The case of the Petitioner is that pursuant to an advertisement issued by the Collector, Kandhamal on 7th May, 2018 for appointment to various posts, the Petitioner applied for B.A. Bed. for engagement in upgraded High Schools/Girls' High Schools under SC and ST Development Department of Kandhamal District. Out of the posts advertised under B.A.Bed., one post was reserved for physically handicapped candidate. The Petitioner is a Physically Handicapped candidate and applied under the said category. It was specified in the advertisement that in case of non- W.P.(C) No. 20806 of 2019 Page 2 of 9 availability of suitable candidates from Kandhamal District, application of candidates from other Districts will be taken into consideration. A draft merit list was prepared for candidates of Kandhamal District in which the Petitioner's name found place at Sl. No.41. Another draft merit list was prepared for candidates belonging to other Districts, wherein the name of the Opposite Party No.4 found place at Sl. No.267 under S.C. category. The authorities prepared a combined final merit list and published the final select list on 16th February, 2019, wherein the Opposite Party No.4 was selected against P.H. category even though he belongs to Boudh District. The Petitioner submitted several representations to the Collector, but to no avail. On 21st October, 2017, the District Welfare Officer, Kandhamal (Opposite Party No.3) issued notice to 6 candidates for B.A. Bed. Teacher post for counseling to be held on 30th October, 2019, whereby the Opposite Party No.4 was noticed. It is alleged that the Petitioner being the only available candidate under Physically Handicapped category of Kandhamal W.P.(C) No. 20806 of 2019 Page 3 of 9 District should have been called for counseling instead of Opposite Party No.4, who belongs to Boudh District and had originally applied only under SC category.
3. The case of the State-Opposite Parties is that though the Petitioner belongs to Kandhamal District and the Opposite Party No.4 to Boudh District, yet as per Resolution dated 5th September, 2017 of the Government in the Department of Social Security and Empowerment of Persons with Disability, the blind/no vision category of Physically Handicapped candidates shall be given first preference than the other categories. The Opposite Party No.4 is a visually handicapped person whereas the Petitioner belongs to locomotor disability/orthopedically handicapped category. As such, the Opposite Party No.4 was preferred over the Petitioner.
4. Be it noted that the private Opposite Party No.4, despite sufficient notice, did not appear to contest this case.
W.P.(C) No. 20806 of 2019 Page 4 of 9
5. The facts as averred in the Writ Petition have not been disputed. It would therefore, be proper to refer to the advertisement (enclosed as Annexure-1) in order to appreciate the contentions raised by the Petitioner. The relevant portion of the advertisement is quoted herein below;
<Applications in prescribed form are invited from the deserving candidates of Kandhamal District for engagement in the following category of posts in the Up- graded High Schools Girls' High Schools under ST and SC Development Department of Kandhamal District purely on Contractual basis. In case of non-availability of suitable candidates from Kandhamal District, applications of the candidates from other Districts will be taken into consideration.= (Emphasis supplied)
6. It is common ground that the Petitioner belongs to Kandhamal District whereas Opposite Party No.4 belongs to Boudh District. The Petitioner is a physically disabled person. Under such circumstances, the candidature of the Petitioner could not have been ignored. The Opposite Party No.4 was selected and as per the counter, purportedly as per Paragraph-11 of W.P.(C) No. 20806 of 2019 Page 5 of 9 the Government Resolution dated 5th September, 2017. The Opposite parties have referred to the different categories of disabilities wherein blindness and low vision comes under category (1) while locomotor disability comes under category No.(3). It is also mentioned that category No.1 is to be given first preference. There can be no dispute as regards the categorization of the Physically Disabled candidates, but then the same would be relevant only when candidates belonging to the same district are under consideration. In the instant case, the advertisement itself stipulates that candidates from other districts will be considered only if suitable candidates from Kandhamal district are not available. Such is not the case at hand inasmuch as the Petitioner, being admittedly a Physically handicapped candidate belonging to Kandhamal district was very much available for consideration. In fact, his name was also included in the draft select list. The concerned authorities appear to have adopted an erroneous procedure in combining the draft merit list of W.P.(C) No. 20806 of 2019 Page 6 of 9 Kandhamal and other districts to prepare a common merit list, which is not envisaged at all in the advertisement. Therefore, on the face of availability of a suitable candidate from Kandhamal district, the very consideration of candidate from other districts, being directly contrary to the stipulation in the advertisement referred to hereinbefore, cannot be sustained in the eye of law.
7. This Court is therefore, of the considered view that Opposite Party No.4 cannot be considered eligible for being selected for appointment. It is well settled that the terms of the Advertisement have to be scrupulously maintained and that there cannot be any deviation unless such a power is specifically reserved. Reference in this regard may be had to the decision of the Apex Court in the case of Bedanga Talukdar vrs. Saifudaullah Khan and others; reported in (2011) 12 Supreme Court Cases 85, wherein the following observations were made;
W.P.(C) No. 20806 of 2019 Page 7 of 9
<We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure.
Consequently, when a particular
schedule is mentioned in an
advertisement, the same has to be
scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement.
However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.= W.P.(C) No. 20806 of 2019 Page 8 of 9
8. Thus, for the reasons aforesaid, this Court has no hesitation in holding that the appointment of Opposite Party No.4 ignoring the case of the Petitioner cannot be sustained in the eye of law.
9. Resultantly, the Writ petition is allowed. The impugned order under Annexure-10 is hereby quashed in so far as it relates to Opposite Party No.4. The Opposite Parties 1 to 3 are further directed to call upon the Petitioner to attend counseling and to consider his case for the post advertised and to give him such appointment if there is no other legal impediment. The above exercise shall be completed within a period of two months from today.
.................................. Sashikanta Mishra, Judge Ashok Kumar Behera ASHOK KUMAR Digitally signed by ASHOK KUMAR BEHERA BEHERA Date: 2023.05.05 18:29:34 +05'30' W.P.(C) No. 20806 of 2019 Page 9 of 9 W.P.(C) No. 20806 of 2019 Page 10 of 9 W.P.(C) No. 20806 of 2019 Page 11 of 9 W.P.(C) No. 20806 of 2019 Page 12 of 9 W.P.(C) No. 20806 of 2019 Page 13 of 9