Orissa High Court
Avijit Pattnaik vs Union Of India & Ors. .... Opposite ... on 19 April, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.35486 of 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Avijit Pattnaik .... Petitioner
-versus-
Union of India & Ors. .... Opposite Parties
For Petitioners : Mr. P.K. Rath, Sr. Advocate
along with
Mr. A. Behera, Advocate
For Opp. Parties : Mr. N.K. Sahu, Advocate
(Opp. Party Nos. 2 & 3)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 03.04.2024 and Date of Judgment: 19.04.2024
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Biraja Prasanna Satapathy, J.
Petitioner has filed the present writ petition inter alia with the following prayer:-
"The petitioner, therefore, prays that your Lordships would be graciously pleased to admit this Writ Petition, call for the records and after hearing the parties allow the same, // 2 // issue writ/writs in the nature of certiorari/ mandamus and/or any other further writ/direction and quash the impugned order vide letter No. 2685 dated 27th Oct, 2023 issued by Registrar, National Institute of Technology, Rourkela / Opposite Party No.3 to conduct personal Interview once again under Annexure-1 and direct the Opposite Party/ N.I.T to complete the selection process pursuant to personal interview conducted vide Annexure-4.
And for this act of kindness, the petitioner shall as in duty bound ever pray."
2. Learned Sr. Counsel appearing for the Petitioner contended that pursuant to the advertisement issued by National Institute of Technology, Rourkela (in short NIT) vide Advertisement No. ES/03/2014 under Annexure-2 inviting application for recruitment of non-teaching post, Petitioner made his application as against the post of Technical Assistance SG-II with specialization Video Editing. 2.1. It is contended that one post in UR Category was so advertised in respect of the post of Technical Assistant SG-II with specialization Video Editing.
2.2. It is also contended that as provided under Clause 14 of the Advertisement so issued under Annexure-2, a panel of eligible candidates shall be prepared as per recommendation of the Selection Committee and vacancies that arise within one year will be filled in sequence out of the panel.
Page 2 of 25
// 3 // 2.3. Learned Sr. Counsel appearing for the Petitioner contended that vide Annexure-4, NIT issued the list of candidates provisionally selected for personal interview with regard to the post of Technical Assistant with specialization in Video Editing. Names of three (3) candidates were reflected in the provisional select list so issued under Annexure-4, which includes the Petitioner, one Abinash Biswal and Rashmi Ranjan Sahoo. Pursuant to the direction contained in Annexure-4, all the three (3) candidates attended the interview on the date fixed. But one of the candidate namely Abinash Biswal when was finally selected and appointed, the matter was challenged by the present Petitioner before this Court in W.P.(C) No. 5571 of 2016. This Court while issuing notice of the matter vide order dtd.06.04.2016, passed an interim order to the effect that any appointment to the post of Technical Assistant (Video Editing) shall be subject to result of the Writ Petition. 2.4. It is contended that on receipt of the notice in W.P.(C) No. 5571 of 2016 when the Institute decided to cause an enquiry by issuing a memorandum on 02.08.2018, the selected candidate Abinash Biswal approached this Court in W.P.(C) No. 14445 of 2018 challenging such initiation of the proceeding. This Court vide order dtd.03.03.2022 while disposing W.P.(C) No. 14445 of 2018 only granted liberty to the authority to conclude the proceeding as expeditiously as possible Page 3 of 25 // 4 // preferably within a period of four (4) months from the date of receipt of this order.
2.5. It is contended that in the proceeding in question the Institute took a decision to terminate the services of the said Abinash Biswal, who was wrongly engaged in the said post and accordingly terminated him from his services on 27.06.2022. The aforesaid fact reflected in the stand taken by NIT in the additional affidavit filed in W.P.(C) No. 5571 of 2016 under Para 4 & 6 are reproduced hereunder:-
"4. That the OP No. 8 i.e. Abinash Biswal had got his appointment to the said post of Technical Assistant (Video Editing) by suppressing material facts and adopting fraudulent means including adducing incorrect information about his work experience at the time of submission of application and was discovered to be not suitable for occupying the said post of Technical Assistant (Video Editing) as per the recruitment rules of the Institute. The Institute took a decision to terminate the services of the O.P No. 8 who was wrongfully engaged in the said post and accordingly, the services of Mr. Abinash Biswal was terminated on 27.06.2022.
xxx xxx xxx
6. That in the meanwhile fresh Advertisement No.
NITR/ES/08/2022 dt.13.12.2022 has been floated by National Institute of Technology. Rourkela for recruitment into various non-teaching posts. At SI No. 12 of the said advertisement, provision has been made for direct recruitment into the post of Technical Assistant having a total of 36 posts out of which one Page 4 of 25 // 5 // post may be filled up with a suitable candidate having specialization in the field of Video Editing in so far as the present Petitioner is concerned, he is at liberty to make a fresh application by paying the requisite application fee and submitting all his documents through the proper portal and in the event of such application the same shall be consider for selection afresh as per current eligibility requirements like Educational qualification and experience as given in the advertisement. The previous advertisement of the year 2014 having lost its tenure and fresh advertisement having been made in the meantime,, the Writ Petition merits no consideration save and except consideration of the case of the Petitioner in terms of the advertisement dated 13.12.2022 if he made an application for selection in the post as aforesaid."
2.6. It is also contended that after terminating the services of Sri Abinash Biswal, the Institute issued a fresh advertisement on 13.12.2022 inviting applications for recruitment to various post vide Annexure-7. But since in the said advertisement no post was advertised as against the post of Technical Assistant (Video Editing), Petitioner was deprived to make any such application. However, considering the stand taken by the Institute in the additional affidavit filed under Annexure-7, this Court disposed of W.P.(C) No. 5571 of 2016 vide Judgment dtd.18.04.2023 under Annexure-11. View taken by this Court in Para 8 & 9 of the Judgment is reproduced hereunder:-
"8. In the instant case, the recommendation of the selection committee was made on 01.04.2015 (copy enclosed as Page 5 of 25 // 6 // Annexure-F/2 to the counter filed by NIT). As already stated, the present writ petition was filed on 28.03.2016, i.e., before expiry of the period of one year from the date of recommendation. There is however, no panel as such. Nevertheless, it is not disputed that the opposite party No.8 was terminated from service on the ground of playing fraud for which his appointment has to be treated as invalid from the very beginning. Under such circumstances, the two other candidates, who were called to the interview, can raise a claim for being considered in the vacancy so created. Be it noted that merely because the petitioner was called to attend the interview does not confer on him any vested right of being appointed. Nevertheless in view of the peculiar facts and circumstances obtaining in the case vis-à-vis the selection and termination of services of opposite party no.8, the case of the petitioner can at least be considered against the vacancy. This is being said because the earlier selection process cannot be said to have been validly concluded in view of the termination of the opposite party No.8 on ground of fraud and misrepresentation of facts etc.
9. For the foregoing reasons therefore, the writ application is disposed of directing the opposite party Nos. 2 and 3 to consider the case of the petitioner for selection against the vacancy created by the termination of service of opposite party No.8. A decision in this regard shall be taken within a period of four weeks from the date of communication of this order or on production of certified copy thereof by the petitioner."
2.7. It is contended that though this Court while disposing W.P.(C) No. 5571 of 2016 vide Judgment dtd.18.04.2023 under Annexure-11 clearly held that the earlier selection process cannot be said to have been Page 6 of 25 // 7 // validly concluded in view of the termination of Sri Abinash Biswal on the ground of fraud and mis-representation of fact and also held that the claim of the Petitioner can be considered against the vacancy in question. This Court accordingly directed the Institute to take a decision on the claim of the Petitioner to get the benefit of appointment because of the vacancy created on termination of the services of Sri Abinash Biswal.
2.8. It is contended that on the face of such direction issued by this Court in its Judgment dtd.18.04.2023 under Annexure-11 when vide its communication dtd.19.05.2023 under Annexure-12, Petitioner was asked to give a suggestion for the post he is interested to apply in terms of the advertisement issued by the Institute on 13.12.2022 vide Annexure-7, Petitioner challenging the same once again approached this Court in W.P.(C) No. 17493 of 2023. This Court vide its order dtd.06.10.2023 while disposing the writ petition, issued the following direction so contained in Para 6 of the order:-
"6. Having heard learned counsels appearing for the Parties and in view of the undertaking given by the Opposite Party Nos,2 and 3 in the counter in Para-5, this Court while disposing the writ petition directs Opposite Party Nos.2 and 3 to conclude the selection process for the post of Technical Assistant with specialization in Video Editing, pursuant to the advertisement issued under Annexure-2 by confining the Page 7 of 25 // 8 // selection in between the present Petitioner and Rashmiranjan Sahoo. This Court accordingly directs Opposite Party Nos. 2 and 3 to conclude the selection process within a period of four (4) weeks from the date of receipt of this order."
2.9. Learned Sr. Counsel appearing for the Petitioner contended that in its order dtd.06.10.2023 in W.P.(C) No. 17493 of 2023, this Court directed the Institute to conclude the selection process for the post of Technical Assistant with specialization in Video Editing pursuant to the advertisement issued under Annexure-2 i.e. the selection process, in which the present Petitioner participated as against the post in question. This Court also held that the selection process shall be confined in between the present Petitioner and other candidate namely Rashmi Ranjan Sahoo.
2.10. It is contended that on the face of such specific direction issued by this Court in W.P.(C) No. 17493 of 2023 read with the earlier direction contained in Judgment dtd.18.04.2023 in W.P.(C) No. 5571 of 2016, when the Institute issued the impugned communication on 27.10.2023 under Annexure-1, directing both the Petitioner and Rashmi Ranjan Sahoo to participate in the interview once again, the matter is before this Court in the present writ petition.
Page 8 of 25
// 9 // 2.11. It is contended that basing on the provisional select list issued under Annexure-4 to the selection undertaken pursuant to Annexure-2 and the direction contained therein, all the three (3) candidates provisionally selected, participated in the interview on the date fixed. After finalization of the selection process, order of appointment since was issued in favour of an ineligible candidate. i.e. Abinash Biswal, the matter was challenged by the present Petitioner in W.P.(C) No. 5571 of 2016. This Court in its Judgment dtd.18.04.2023 under Annexure-11 clearly held that the selection process pursuant to Annexure-2 cannot be said to have been validly concluded in view of the termination of the selected candidate namely Abinash Biswal. This Court further directed for consideration of the case of the Petitioner against the vacancy created by such termination of service of Sri Abinash Biswal. 2.12. Subsequently, when the Institute issued a communication on 19.05.2023 asking the Petitioner to give his suggestion for the post he is interested to make his application in terms of the subsequent advertisement issued on 13.12.2022, the matter was challenged in W.P.(C) No. 17493 of 2023. This Court in its order dtd.06.10.2023 basing on the concession given by Opp. Party Nos. 2 & 3 i.e. the Institute, disposed of the writ petition with a direction to conclude the selection process in terms of Annexure-2 advertisement confining the Page 9 of 25 // 10 // selection in between the present Petitioner and one Rashmi Ranjan Sahoo.
2.13. It is contended that pursuant to the selection process so undertaken in terms of Annexure-2 and after conducting the interview in terms of Annexure-4, Panel was published by the Institute on 26.03.2015 vide Annexure-A/3 to the counter affidavit, so filed by the Opp. Party Nos. 2 & 3. In the said panel name of the present Petitioner was at Sl. No. 2 and that of the selectee Abinash Biswal at Sl. No. 3. But since the total mark secured by Sri Abinash Biswal was higher than the Petitioner, he was selected and appointed. After his termination Petitioner being in the 2nd position with the mark secured, he should have selected and appointed in terms of order passed by this Court in W.P.(C) No. 5571 of 2016 and subsequent order passed by this Court in W.P.(C) No. 17493 of 2023. But instead of concluding the selection process basing on the panel prepared vide Annexure-A/3 and the provisions contained under Para 14 of the advertisement so issued under Annexure-2, since the impugned communication was issued to conduct a fresh interview in between the Petitioner and other candidate namely Rashmi Ranjan Sahoo, the same is not sustainable in the eye of law and requires interference of this Court with a further direction to provide appointment to the Petitioner basing on his position in the panel Page 10 of 25 // 11 // so prepared under Annexure-A/3. It is also contended that because of the interim order passed by this Court on 01.11.2023, no fresh interview has been conducted in terms of the impugned communication issued on 27.10.2023 under Annexure-1.
2.14. It is further contended that pursuant to the selection process initiated under Annexure-2, provisional select list for the post in question was published under Annexure-4. In terms of Annexure-4 interview was conducted on the date fixed and basing on the marks secured by the candidates, the Panel was published on 26.03.2015 vide Annexure-A/3. Since the selection process pursuant to Annexure-2 concluded with publication of the Panel after conduct of the interview vide Annexure-A/3, conduct of fresh interview is not permissible in the eye of law and Petitioner taking into account his position in the Panel is eligible to get the benefit of appointment.
3. Mr. N.K. Sahu, learned counsel appearing for Opp. Party Nos. 2 & 3
- Institute on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that pursuant to the advertisement issued vide Advertisement No. ES/03/2014 under Annexure-2, the competent authority recommended the name of Sri Abinash Biswal and provided him with appointment basing on such Page 11 of 25 // 12 // recommendation. Neither the Petitioner nor the other candidate Rashmi Ranjan Sahoo were recommended and in the panel prepared vide Annexure-A/3 both the candidates were shown to have been not recommended.
3.1. Since because of termination of the selected and appointed candidate namely Abinash Biswal, the post failed vacant, in terms of the direction issued by this Court in W.P.(C) No. 5571 of 2016 and subsequent order in W.P.(C) No. 17493 of 2023, the Institute took a decision to conduct a fresh interview in between the Petitioner and Rashmi Ranjan Sahoo with issuance of the communication under Annexure-1.
3.2. It is contended that since out of three (3) candidates who were provisionally selected as against the post of Technical Assistant (Video Editing) under Annexure-4, only one candidate was recommended namely Abinash Biswal, and Petitioner and other candidate since were never recommended, they have to appear for a fresh interview and no illegality has been committed by Opp. Party Nos. 2 & 3 while issuing the impugned communication under Annexure-1 directing the Petitioner and Sri Rashmi Ranjan Sahoo to participate in the interview in question.
Page 12 of 25
// 13 // 3.3. It is also contended that the selection process pursuant to the advertisement issued under Annexure-2 with regard to the post in question has been completed with preparation of the Panel vide Annexure-A/3. It is also contended that this Court in its Judgment dd.18.04.2023 under Annexure-10 made the following observations while disposing W.P.(C) No. 5571 of 2016:-
"This is being said because the earlier selection process cannot be said to have been validly concluded in view of the termination of the opposite party No.8 on ground of fraud and misrepresentation of facts etc.
9. For the foregoing reasons therefore, the writ application is disposed of directing the opposite party Nos. 2 and 3 to consider the case of the petitioner for selection against the vacancy created by the termination of service of opposite party No.8. A decision in this regard shall be taken within a period of four weeks from the date of communication of this order or on production of certified copy thereof by the petitioner."
3.4. It is contended that the selection process pursuant to Annexure-2 has since been completed on 26.03.2015 with publication of the Panel under Annexure-A/3 and appointment of the selected candidates namely Abinash Biswal. Petitioner has got no vested right of being appointed basing on his position in the Panel published vide Annexure- A/3 and he was required to attend the interview afresh in terms of the Page 13 of 25 // 14 // order passed by this Court in both the writ petitions. It is also contended that since the Panel so prepared on 26.03.2015 under Annexure-A/3 lost its validity after completion of one year from the date of such publication, Petitioner has got no right accruing from that Panel and he has to participate in a fresh interview to be conducted in between him and Sri Rashmi Ranjan Sahoo. In support of his aforesaid submissions, Mr. Sahu, learned counsel appearing for Opp. Party Nos. 2 & 3 relied on the following decisions of the Hon'ble Apex Court:
1. Thrissur District Cooperative Bank Limited Vs. Delson Davis P. & Ors., (2021) 14 SCC 407
2. Sudesh Kumar Goyal Vs. State or Haryana & Ors., 2023 SCC OnLine SC 1201
3. Punjab State Electricity Board & Ors. Vs. Malkiat Singh, (2005) 9 SCC 22
4. State of A.P. & Ors. Vs. D. Dastagiri & Ors., (2003) 5 SCC 373
5. Bedanga Talukdar Vs. Saifudaullah Khan & Ors., (2011) 12 SCC 85 3.5. Hon'ble Apex Court in the case of Thrissur District Cooperative Bank Limited in Para 3 has held as follows:-
"3. We fail to understand the reasoning of the High Court in this regard. When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as a fresh Page 14 of 25 // 15 // vacancy and fresh steps in accordance with the appropriate rules should be taken. This view is fortified by the judgment of this Court in State of Punjab v. Raghubir Chand Sharma [State of Punjab v. Raghubir Chand Sharma, (2002) 1 SCC 113 : 2002 SCC (L&S) 104] . Any temporary arrangement made during the interregnum will not entitle Respondent 1 to claim for permanent employment. In that view of the mater, we allow this appeal, set aside the order made by the High Court and dismiss the writ petition filed by Respondent 1."
3.6. Hon'ble Apex Court in the case of Sudesh Kumar Goyal in Para 18 has held as follows:-
"18. This takes us to the second argument that the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context."
3.7. Hon'ble Apex Court in the case of Malkiat Singh in Para 4 has held as follows:-
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the Page 15 of 25 // 16 // respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads : (SCC pp. 50-51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 :
(1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 :
1985 SCC (L&S) 174 : (1985) 1 SCR 899] ."
(emphasis supplied) Page 16 of 25 // 17 // 3.8. Hon'ble Apex Court in the case of D. Dastagiri in Para 4 has held as follows:-
"4. In the counter-affidavit filed on behalf of the respondents in Civil Appeal No. 915 of 2000, in para 16 it is stated that the process of selection was cancelled at the last stage i.e. before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibition and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In para 16 of the counter-affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the Page 17 of 25 // 18 // respondents that there was any mala fides on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have."
3.9. Hon'ble Apex Court in the case of Bedanga Talukdar in Para 29 has held as follows:-
"29. 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 Page 18 of 25 // 19 // 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 equality contained in Articles 14 and 16 of the Constitution of India. "
4. To the submissions made by Mr. Sahu, Mr. Rath, learned Sr. Counsel appearing for the Petitioner contended that the selection process initiated under Annexure-2 attained finality after conduct of the interview with publication of the Panel vide Annexure-A/3 to the counter on 26.03.2015. In the said panel taking into account the total mark secured by the Petitioner; his position comes at Sl. No. 2. Since Sri Abinash Biswal, who was selected and appointed having secured the highest mark was terminated, in view of the provisions contained under Para 14 of the Advertisement under Annexure-2 coupled with the direction issued by this Court in W.P.(C) No. 5571 of 2016 and W.P.(C) No. 17493 of 2023, Petitioner is required to be appointed basing on his position in the panel so available at Annexure-A/3. Since the Panel vide Annexure-A/3 was prepared after due conduct of the interview in terms of the selection process prescribed in Annexure-2, Page 19 of 25 // 20 // there is no occasion to go for a fresh interview to assess the merit and suitability of the Petitioner vis-à-vis Rashmi Ranjan Sahoo. 4.1. It is also contended that basing on Annexure-2, process of selection has been completed with publication of the Panel under Annexure-A/3 to the counter affidavit and no fresh interview can be conducted in terms of the impugned letter issued by the Institute under Annexure-1. It is also contended that it is the settled law that selection process has to be conducted in terms of the advertisement. In terms of Annexure-2 the interview has already taken place with due publication of the panel vide Annexure-A/3. Therefore, no fresh interview can be conducted, which runs contrary to the stipulation contained in the advertisement under Annexure-2. In support of the aforesaid submission, Mr. Rath, learned Sr. Counsel relied on a decision of this Court reported in 2015(II) OLR- 752 (Sasmita Manjari Das Vs. State of Orissa & Ors.).
In the case of Sasmita Manjari Das Vs. State of Orissa and Others, this Court has held as follows:-
"Law is well settled that if any condition stipulated in the advertisement, it is strictly to be followed by the authority and in no case it will be deviated which has been decided in the case of Ramana Dayaram Shetty v. International Airport Authority of India, reported in (1979) 3 SCC 489 wherein at paragraph-10it has been held:Page 20 of 25
// 21 // "it is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them."
The Supreme Court also in the case of B. Ramakichenin Alias Balagandhi-v-Union of India and Others, reported in (2008) 1 SCC 362 has reiterated the same view after taking into consideration the ratio laid down by the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty-v-International Airport Authority of India."
5. I have heard Mr. P.K. Rath, learned Sr. Counsel appearing for the Petitioner along with Mr. A. Behera and Mr. N.K. Sahu, learned counsel appearing for Opp. Party Nos. 2 & 3. With due exchange of pleadings, the matter was heard finally at the stage of admission and disposed with the consent of learned counsel appearing for the Parties at the stage of admission itself.
6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that pursuant to the advertisement issued by Opp. Party Nos. 2 & 3 vide Advertisement No. ES/03/2014 under Annexure-2, Petitioner made his application as against the post of Technical Assistant SG-II with specialization Video Editing. As found from the record, Petitioner along with two (2) other candidates were provisionally selected and were called to attend the interview vide Annexure-4 for the post in question. After such conduct of the interview and basing on the position Page 21 of 25 // 22 // in the Panel so prepared and issued on 26.03.2015 under Annexure-A/3, when Abinash Biswal was appointed as against the post in question, the matter was carried to this Court in W.P.(C) No. 5571 of 2016. 6.1. This Court while issuing notice of the matter vide order dtd.06.04.2016 under Annexure-5, passed an interim order to the effect that any appointment to the post in question shall be subject to result of the writ petition. It is also found from the record that in the meantime and during pendency of W.P.(C) No. 5571 of 2016, when a proceeding was initiated against the selected and appointed candidate, namely Sri Abinash Biswal on 02.08.2018, the same was challenged by the said Abinash Biswal before this Court in W.P.(C) No. 14445 of 2018. This Court vide order dtd.03.03.2022 under Annexure-6 while not interfering with the initiation of the proceeding, directed for its conclusion within a period of four (4) months from the date of receipt of the order.
6.2. As found from the stand taken in the additional affidavit so filed by Opp. Party Nos. 2 & 3 in W.P.(C) No. 5571 of 2016 vide Annexure-7, the said selected and appointed candidates namely Abinash Biswal was terminated from his services on 27.06.2022. Taking into account such termination of the selected candidates, this Court while disposing Page 22 of 25 // 23 // W.P.(C) No. 5571 of 2016 vide Judgment dtd.18.04.2023 under Annexure-10 clearly held that the process of selection initiated pursuant to Annexure-2 has not yet been completed and accordingly directed Opp. Party Nos. 2 & 3 to consider the claim of the Petitioner against the vacancy so created because of the termination of the selected candidate on the ground of fraud and mis-representation of fact. 6.3. In terms of the direction issued by this Court on 18.04.2023 in W.P.(C) No. 5571 of 2016 and basing on the advertisement issued by the Institute on 13.12.2022 under Annexure-13, when Petitioner was directed to give his suggestion for the post he is interested to apply in terms of the advertisement issued on 13.12.2022, the matter was challenged by the Petitioner in W.P.(C) No. 17493 of 2023. This Court taking into account the concession given by Opp. Party Nos. 2 & 3 that the selection process will only be confined to Petitioner and one Rashmi Ranjan Sahoo disposed of the matter vide order dtd.06.10.2023 under Annexure-15 with a direction on Opp. Party Nos. 2 & 3 to conclude the selection process by confining the selection in between the present Petitioner and Rashmi Ranjan Sahoo.
6.4. Since basing on the selection process initiated under Annexure-2 and after due conduct of the interview, the Panel was published on Page 23 of 25 // 24 // 26.03.2015 under Annexure-A/3, wherein Petitioner taking into account his mark secured is placed at Sl. No. 2, it is the view of this Court that with publication of the panel after due conduct of the interview, the process of selection has come to an end. Since in the said panel, Petitioner taking into account his mark, is placed at Sl. No. 2 and Sri Rashmi Ranjan Sahoo at Sl. No. 3, as per the considered view of this Court, no fresh interview can be conducted to assess the merit and suitability of the Petitioner vis-à-vis Rashmi Ranjan Sahoo. 6.5. Since the selected candidate Sri Abinash Biswal was terminated from his services on 27.06.2022, taking into account the direction issued by this Court in W.P.(C) No. 5571 of 2016 and subsequent direction issued in W.P.(C) No. 17493 of 2023 and the panel available at Annexure-A/3 to the counter, this Court is of the considered view that no fresh interview can be conducted in terms of the impugned notification issued by Opp. Party Nos. 2 & 3 on 27.10.2023 under Annexure-1. The decisions relied on by the learned counsel appearing for Opp. Party Nos. 2 & 3 are no way applicable to the facts of the present case in view of the nature of order passed in W.P.(C) No. 5541 of 2016 and W.P.(C) No. 17493 of 2023.
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// 25 // 6.6. Therefore, this Court is inclined to quash the impugned communication dtd.27.10.2023 so issued by Opp. Party No. 3 under Annexure-1. While quashing the same, this Court directs Opp. Party Nos. 2 & 3 to provide appointment to the Petitioner basing on his position in the panel so available at Annexure-A/3 to the counter within a period of two (2) weeks from the date of receipt of this order.
7. The writ petition is accordingly disposed of with the aforesaid observation and direction.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 19th of April, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Apr-2024 13:31:16 Page 25 of 25