Orissa High Court
Unknown vs Hon'Ble The Chief Justice Mr. Mohammad ... on 21 October, 2020
Bench: Mohammad Rafiq, B.R. Sarangi
W.P.(C) No. 27665 of 2020
HON'BLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
HON'BLE DR. JUSTICE B.R. SARANGI
02. 21.10.2020 Mr. B.P. Tripathy, : For the Petitioner
Advocate
Mr. M.S. Sahoo, : For Opp. Parties 1 & 2
Additional Government Advocate (State of Orissa)
ORDER
Heard learned counsel for the parties by Video Conferencing mode.
2. By way of the present writ petition, the petitioner- Balakrushna Polai has challenged the appointment of opposite party Nos. 4 to 14 for the post of Public Prosecutor, made vide Notification dated 23.07.2019 under Annexure-1, issued by the Government of Odisha in the Home Department- O.P. No.1, on the basis of the final result of the examination conducted by the Odisha Public Service Commission, Cuttack (OPSC)-opposite party No.3 for the said posts.
3. Learned counsel for the petitioner submitted that the OPSC vide advertisement No. 5/2016-17 dated 04.10.2016 invited application from the eligible candidates for recruitment to the post of Public Prosecutors in Group-A in -2- the Odisha State Prosecution Service. As mentioned in the said advertisement, there were 12 vacancies in Un-reserved category, however, out of that, 04 posts were meant for women candidates. Candidates were required to submit their applications online by the last date fixed i.e. 26.11.2016. According to the petitioner he also submitted the application for the said recruitment test and his name was figured at Sl. No.25 and Roll No. 100125 in the list of eligible candidates admitted to the Written Examination under Annexure-3. The written examination was held on 11th & 12th days of August, 2018. The petitioner appeared in the written examination and secured 166 marks in total. The grievance of the petitioner is that to call a candidate for the interview, the OPSC had fixed the cutoff marks 35% and though the petitioner had secured more than the said cutoff marks, still he had not been called to appear in the Viva-voce test. However, recently petitioner came to know that in the meantime the OPSC has already published the final result of the examination and on the basis of that the opposite party No.1 has issued the impugned Notification dated 23rd July, 2019 appointing opposite party Nos. 4 to 14 (11 candidates) against 12 notified vacancies, keeping one post vacant. It is -3- stated by the petitioner that he came to know from the impugned Notification that some candidates approached the Odisha State Administrative Tribunal by filing O.A. Nos. 146/2019, 186(c)/2019,238(C)/2019 and 394(c)/2019 challenging the selection procedure and the Tribunal passed an interim order that any appointment made pursuant to the recruitment tests in question is subject to final outcome of the Original Applications and it was further directed by the Tribunal that one post be kept vacant.
4. According to learned counsel for the petitioner, the opposite party No.3 has selected four women candidates against the reservation meant for SEBC/SC/ST, and out of those four women candidates, O.P. No. 13 was already in job under the Prosecution Service of the Home Department, but she has been selected again. It is submitted by the learned counsel for the petitioner that the advertisement under Annexure-2, with regard to reservation, is in gross violation of Rule 16(1) of Odisha State Prosecution Rules, Section 5 of the S.E.B.C. Act, 2008 and O.R.V. Act, 1975, therefore, the selection of opposite party Nos. 4 to 14 is not sustainable in law being result of colorable exercise of power of the opposite -4- parties-1 to 3 and is violating of Articles 14 and 16 of the Constitution of India. It is therefore, prayed that the appointment orders under Annexure-1 may be quashed.
5. We have given our anxious consideration to submission of the learned counsel for the petitioner and gone through the record.
6. Firstly, the present writ petition has been filed belatedly on 13.10.2020, challenging the validity of the advertisement published in October, 2016 i.e. after four years, and fifteen months after the issuance of the appointment order dated 23.7.2019. Secondly, the petitioner by accepting the advertisement submitted his application and appeared in the written examination, but he is now questioning the validity of the process of selection only because he was not called for interview and could not become successful. It is the settled principles of law that when a candidate appears in the examination without protest and is subsequently found to be unsuccessful, question of entertaining a petition at his behest challenging the procedure adopted in the advertisement/examination would not arise. Further, in the instant case, the petitioner -5- has also failed to point out that any candidate having secured lesser marks in the written examination than the petitioner, had either been called to the interview or has been appointed.
7. It is further submitted by the learned counsel for the petitioner that the petitioner had applied under SEBC category and on that basis the petitioner has also availed age relaxation, but the advertisement under Annexure-2 indicates vacancy of 12 posts for UR category, which is contradictory and not permissible. In our view, the said contention of the learned counsel for the petitioner cannot be countenanced for the reason that in Clause 3 of the Advertisement, with regard to age, it has clearly been mentioned that age relaxation shall be given as per Government Rules, prescribed for the purpose. It is the concession given by the statute for reserved category candidates for the purpose of availing age relaxation, and even if the petitioner has availed the said age relaxation, that itself not entitled him to get certain post reserved for his category or to get relaxation in the examination process. -6-
8. So far the grievance of the petitioner that despite having secured 166 marks in the written examination, which is more than the cutoff marks of 35% as fixed by the OPSC to call a candidate for interview, he was not called upon to attend the interview, cannot also be accepted for the reason that in the 'Note' given in the last part of the Advertisement under Annexure-2 clearly indicates that the candidates shall be short listed in the ratio of 1:3 with reference to number of vacancies for Viva Voce Test depending on such marks awarded to the candidates in the written examination as may be decided by the Commission. The petitioner is not able to establish his case that he was coming within top 36 candidates, on the basis of marks secured in the written examination, in terms of 1:3 ratio fixed by the Commission to be called for interview.
9. In view of the above, we are of the considered opinion that the petitioner has not been able to make out any case in his favour for interference of this Court. Accordingly, the writ petition is dismissed being devoid of any merit.
No order as to costs.
-7-As Lock-down period is continuing for COVID-19, learned counsel may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.
(Dr. B.R. Sarangi) (Mohammad Rafiq)
AD
Judge Chief Justice