Orissa High Court
Afr Manas Ranjan Tripathy vs Niser & Others .... Opposite Parties on 9 May, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 8245 of 2012
(An Application under Articles 226 & 227 of the Constitution
of India)
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AFR Manas Ranjan Tripathy ...... Petitioner
-Versus-
NISER & Others .... Opposite Parties
Advocate(s) appeared in this case:-
________________________________________________
For Petitioner : M/s. J.K.Rath, Senior Counsel with
D.N.Rath, Advocates Mr. A.Das, for
Opposite Party Nos. 1 & 2.
For Opp. Party : Mr. S. N. Pattnaik,
Additional Government Advocate for
the State.
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
9th May, 2024 SASHIKANTA MISHRA, J.
The petitioner has filed this writ application with the following prayer:
"Under the above circumstance, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction Page 1 of 16 or order by quashing the advertisement issued by the opposite parties vide Annexure-6 to the writ application so far as it relates to the post of Assistant (Hindi) and to consider the case of the petitioner for appointment to the post of Junior Hindi Translator as per the advertisement vide Annexure-1 to the writ application since the petitioner is having the requisite essential and desirable qualification, so also the experience as required under the said advertisement.
And for this act of kindness, as in duty bound, the petitioner shall ever pray."
2. The facts of the case briefly stated is as follows;
(i) National Institute of Science Education and Research (NISER) (Opposite Party No.1) is an institution set up by the department of Atomic Energy Government of India, providing undergraduate and Post Graduate Education in science combined with frontline research.
(ii) An advertisement was issued by NISER on 22.03.2011 inviting applications for appointment to different posts including the post of Junior Hindi Translator in the pay scale of P.B.-2, 9,300-34,800 with grade pay of Rs. 4,200 and initial basic of Rs. 13,500/-. Said post was reserved for general category candidates. The upper age limit was prescribed as 32 years as on 30.04.2011.
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(iii) The petitioner, claiming to possess the requisite qualification, submitted his application pursuant to the advertisement. By letter dated 10.09.2011, of the Opposite Party No.1, he was asked to appear in the written test/interview to be held on 10.09.2011. When he presented himself on the date fixed, he was informed that the interview was cancelled on the ground that out of five candidates called, only the petitioner had reported.
(iv) The petitioner submitted an application on 18.09.2011 to the Opposite Party No.1 to intimate the further progress. On the same day, he received a communication by e-mail stating that the recruitment for the post of general category has been cancelled and that the institute will advertise the post again in the near future and that the candidature of the petitioner would be considered.
(v) While the matter stood thus, an advertisement was issued by NISER on 31.03.2012 inviting applications for appointment for non-academic positions including a post of Assistant (Hindi) belonging to the General category Page 3 of 16 (P.B.-1) with scale of pay Rs. 9,300- 34,800/- grade pay of Rs. 4,200/- and initial basic pay of Rs.13,500/-.
However, the upper age limit was fixed at 28 years as on 31. 03. 2012.
(vi) According to the petitioner the post of Junior Hindi Translator had been redesignated as Assistant (Hindi) but despite the assurance given to him earlier, he was not considered for which he has approached this Court in the present writ application.
3. Counter Affidavit has been filed on behalf of NISER admitting most of the relevant facts including the fact that the written test/interview was cancelled due to non- availability of sufficient number of candidates. It is also admitted that the APO(Admin) of NISER had intimated the petitioner that whenever the institute would advertise the vacancy again in near future, his candidature would be considered. It is further stated that the post against which the petitioner had applied had been redesignated as Assistant (Hindi) as there is no post designated as Junior Hindi Translator, as per the provisions of the Page 4 of 16 Rules of the Institute. Further, the age limit had also been fixed by following the normal practice of other Government of India organizations. As regards consideration of the candidature of the petitioner, it is specifically stated that since he fulfils all the eligibility conditions except age for the readvertised post that is, Assistant (Hindi), still he would be considered for appearing in the interview. It has also been stated that even if the petitioner has not applied for the post of Assistant (Hindi), there is no embargo to consider him along with other candidates for the said post provided he fulfils all the eligibility conditions.
4. The petitioner filed a rejoinder to the Counter Affidavit. It is stated that he having been shortlisted, the selection process should not have been cancelled. He has a right to be considered and there exists a legitimate expectation for being appointed against the post originally advertised. By the time of publication of the second advertisement. He became over-aged and therefore, he should be Page 5 of 16 considered against such post as per assurance given by NISER.
5. An Additional Affidavit has been filed NISER inter alia stating that during pendency of the writ application, Government of India has created a new post of Junior Hindi Translator (level-VI) vide letter dated 14.01.2022. As such, the averment made in the Counter Affidavit, regarding redesignation of Junior Hindi Translator as Assistant (Hindi) no longer survives. As regards the advertisement dated 31.03.2012, it is stated that the same has been given effect to, except the post of Assistant (Hindi) as no one has been appointed. Further, the application of the petitioner would be considered at par with other applicants for the newly created post as and when it is advertised by granting him age relaxation.
6. Heard Mr. Jayant Kumar Rath, learned Senior counsel with Mr. D.N.Rath, learned counsel for the petitioner and Mr. Amitav Das, learned counsel appearing for NISER.
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7. Learned Senior counsel, Mr. Rath, would argue that the decision to cancel the interview only because the other short-listed candidates did not attend is entirely arbitrary and cannot be countenanced in law. In any case, the post having been redesignated, and advertised again, it was incumbent upon the authorities to consider the case of the petitioner as per assurance given by them in writing. Mr. Rath further contends that the creation of new post would have no bearing on the present case since the post of Assistant (Hindi), advertised on 31.03.2012, has admittedly not been filled up as yet. Mr. Rath further argues that the authorities of NISER cannot be allowed to take a mutually contradictory plea by admitting in the Counter Affidavit that the post of Junior Hindi Translator was re-designated as Assistant (Hindi) and yet stating the opposite in the additional affidavit filed in the case. Since the petitioner has become over- aged and admittedly possesses all the other eligibility criteria, he should be considered for the post. Page 7 of 16
8. Mr. Amitav Das, learned counsel appearing for NISER, would argue that the decision to cancel the advertisement issued is the prerogative of the employer. In any case, the petitioner has never challenged the cancellation of the earlier advertisement. That apart, the post of Junior Hindi Translator having been created in the meantime, the case of the petitioner would be considered whenever the same is advertised by granting him age relaxation.
9. From the rival pleadings and submissions as noted above, it is evident that the post originally advertised was Junior Hindi Translator with P.B. The post subsequently advertised was of Assistant (Hindi) in pay scale (P.B.-1) with scale of pay Rs. 9,300- 34,800/- grade pay of Rs. 4,200/- and initial basic pay of Rs.13,500/-. The eligibility conditions for both are also found to be same. The only difference is, in the former case the upper age limit was 32 years whereas, in case of the latter, same is 28 years. In the Counter Affidavit filed by NISER, it has been stated that the written test/interview was cancelled due to non-availability of sufficient number of candidates. Page 8 of 16 Since the petitioner has not specifically challenged the cancellation of the advertisement, this Court does not deem it proper to delve into such issue. Be that as it may, it is also admitted in the counter that the petitioner was assured that his candidature would be considered whenever the vacancy was advertised. It is also admitted under paragraph 10 as follows:
"That in reply to Paragraph-8 of the Writ Petition, it is humbly submitted that going by the communication and assurance made by the APO(Admin.), the position has been re-advertised vide No. Estt./Rct-NA/01-2012. In so far as consideration of his candidature is concerned, it is humbly submitted that, since he fulfills all the eligibility conditions except age for the re-advertised post, viz,. Assistant (Hindi) as per Notification No. Estt./Rct-NA/01-2012, but still he would be considered, for appearing the interview. A copy of the recommendations of the Minutes of the meeting of the Selection committee for the post of Junior Hindi Translator held on 10th September 2011 is annexed herewith as Annexure-1."
It has also been admitted that the post of Junior Hindi Translator was redesignated as Assistant (Hindi) under Paragraph 9 in the following words:
"That in reply to Paragraph-7 of the Writ Petition, it is humbly submitted that it is a fact that the post of Junior Hindi Translator against which post petitioner was a candidate, the test/interview in respect of which had been cancelled, has been re-designated as Assistant(Hindi), since as per the provisions under the Rules of the Institute there is no post designated as Junior Hindi Translator, with the qualification, pay Page 9 of 16 etc. as was advertised earlier. In so far as age limit for the post of Assistant (Hindi) is concerned, the same has been done by following the normal practice of other Government of India Organizations, without any prejudice to the petitioner"
Surprisingly, in the Additional Affidavit filed on 01.09.2023, it has been stated that the averments made in the Paragraph 9 with regard to redesignation of Junior Hindi translator as Assistant (Hindi) no longer survives. The following has been averred in the additional affidavit.
"That, the NISER has already filed an affidavit in the aforesaid case. During the pendency of the writ application., Govt. of India has created a new post of Junior Hindi Translator (Level-06) in NISER, and the same was communicated on 14.01.2022. In view of this, the fact stated in paragraph 09 of counter affidavit with regard to the re-designation of Junior Hindi Translator as Assistant(Hindi) no longer survives. Moreover, the fact that the post of Junior Hindi Translator has been re-designated as Assistant (Hindi) is also not correct. The deponent wants to bring this fact to the knowledge of this Honourable Court by way of filling the present additional affidavit. Copy of letter dated 14.01.2022 is filed herewith as Annexure-
A/2."
10. Thus, essentially what is contended is, since a new post has been created, the fact of redesignation of the post of Junior Hindi Translator as Assistant(Hindi) has become redundant. This clearly amounts to blowing hot and cold at the same time, which is not permissible in Page 10 of 16 the eye of law. The principle that a party cannot approbate and reprobate at the same time is well settled by a plethora of judgment of the Supreme Court. Reference may be had to the case of Commissioner of Income Tax vrs. Mr. P.Firm Muar1. In R.N.Goswain Vrs. Yaspal Dhir2 the Supreme Court observed as follows:
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage." Similar view has been taken by the Supreme Court in Babu Ram @ Durga Prasad v. Indra Pal Singh, AIR 1998 SC 3021:
1998 AIR SCW 2877: (1998) 6 SCC 358. In P.R. Deshpande v. Maruti Balaram Haibatti, AIR 1998 SC 2979: 1998 AIR SCW 2830 8) 6 SCC 507, the Supreme Court observed that the doctrine of election is based on rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel, which is a rule in equity. By that law, a person may be precluded by his actions conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had".
11. Thus, having stated on affidavit that the post of Junior Hindi Translator was redesignated as Assistant 1 AIR 1965 SCC 1216 2 1992 4 SCC 683 Page 11 of 16 (Hindi) which was advertised, the authorities of NISER cannot turn around and take the stand that it is not so. Creation of the new post would not have any bearing in view of the fact that the redesignated post of Assistant(Hindi) had already been advertised way back on 31.03.2012 and said post was never filled up. The letter dated 14.01.2022 of Government of India creating the post of Junior Hindi Translator (level-VI) does not say anything whatsoever as regards the post of Assistant (Hindi). What effect it would have on the post already advertised has not been stated at all. It cannot therefore, have any bearing on the pending litigation between the parties with regard to the post already advertised and but filled up as yet.
12. Such being the factual position, the assurance given by NISER in writing to the petitioner as also in the Counter Affidavit as quoted hereinbefore, that the candidature of the petitioner would be considered even if he had not applied, pursuant to the advertisement dated 31.03.2012, after granting him age relaxation assumes Page 12 of 16 great significance and something that the Opposite Party authorities cannot simply wriggle out from moreso, as it is a Government of India undertaking.
13. It is true that merely being invited to attend interview does not confer a vested right on any person for appointment but then in view of the facts obtaining in the present case, it would only be reasonable to suppose that the petitioner at least had the legitimate expectation of being considered for appointment subject to fulfillment of the eligibility conditions and coming out successful in the interview. Explaining the concept of legitimate expectation, the Supreme Court in the case of Ramsingh & another Vrs. State of Bihar3 held as follows;
"438. LEGITIMATE EXPECTATION "The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, in not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a legitimate expectation of a particular treatment, if any representation or promise is made by an 3 2006 8 SCC 381 Page 13 of 16 authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above "fairness in action but far below promissory estoppel. It may only entitle an expectant: (a) to, an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief Public interest, danger in policy, conduct of the expectant or any other valid or bona file reason given by the decision-maker may be sufficient to negative the 'legitimate expectation. om legitimate expectation based on a promise). dealings or transactions or negotiations with an authority on which such established practice has a bearing, or by someone who has a recognized legal relationship with the author A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with authority, cannot invoke the doctrine of legitimate expectation merely on the ground t the authority has a general obligation to act fairly."
(Emphasis added)
14. In the instant case, it is stated at the cost of repetition that an express assurance was given by the authorities to the petitioner that his case would be considered, but no action whatsoever was taken in all these years. From what has been stated hereinbefore, this Court is of the considered view that the petitioner's legitimate expectation of being considered for the post advertised has to be respected. As regards the assurance Page 14 of 16 that he would be considered against the newly created post in the future advertisement, this Court finds the same too vague and farfetched to be considered. This Court takes note of the fact that the original advertisement was of the year 2011 and the petitioner has been fighting out the litigation since 2012, that is for a period of twelve long years.
15. Thus, from a conspectus of the analysis made hereinbefore, this Court has no hesitation in holding that the Opposite Parties are duty-bound to consider the case of the petitioner for the post of Assistant (Hindi) as advertised on 31.03.2012, by granting him age relaxation as assured by them.
16. In the result, the writ application is allowed in part with the direction to Opposite Parties to consider the case of the petitioner for appointment against the post of Assistant (Hindi), advertised on 31.03.2012, by granting him age relaxation and in accordance with law. This exercise should be completed within a period of two Page 15 of 16 months from the date of production of certified copy of this order by the petitioner.
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Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 09-May-2024 20:05:23 Page 16 of 16