Orissa High Court
Sapneswar Pradhan vs State Of Orissa And Others on 6 November, 2015
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.9589 of 2014
In The matter of application under Articles 226 and 227 of the Constitution
of India.
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Sapneswar Pradhan ...... Petitioner
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner : M/s Bibhu Prasad Das,
S.Nandan Das. Mr. Deepak Kumar
For Opp.Parties : Mr. Budhiman Rout, Standing Counsel
for School and Mass Education
Department.
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PRESENT:
THE HON'ABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment: 6.11.2015
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S.N.Prasad,J. This writ petition has been filed for issuance of direction upon
the opposite parties to appoint the petitioner as Sikshya Sahayak under
Multi Lingual Education Programme in the district of Kandhamal.
2. Brief facts of the case is that in pursuance to the
advertisement no.5899 dated 6.8.2013 by which applications were invited
from the eligible candidates for engagement of Sikshya Sahayak under
Multi Lingual Education Programme in various tribal dominated districts of
the State. For governing the recruitment system the government has come
out with the resolution dated 6.8.2013 issued in the name of the His
Excellency Governor of the State and the procedure for selection has been
made therein. Provision has been made for selection to be made on the
basis of the merit i.e. on the basis of percentage of marks with proficiency in
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tribal language of the community as would be evident from clause 5.3 of the
resolution dated 6.8.2013 and further in clause 5.3(a) it has been
provided that merit list will be prepared based on the total percentage
of marks secured by the candidates in HSC examination, Higher
Secondary(+2) examination and 2 year Diploma in Elementary Education
(C.T.) examination.
Petitioner being a qualified unemployed ST youth after getting
matriculation and intermediate examinations passed and getting completed
C.T. training having possessed language proficiency in Kui language made
an application for consideration of his candidature. Petitioner has also
submitted Physically Handicapped certificate being 55% locomotor disable,
to that effect certificate has been issued by the authority dated 3.11.2006.
After submission of application form, name of the petitioner found place in
the eligible list who were called for documents verification and accordingly
documents of the petitioner was verified and was called for to appear in the
written test for language proficiency test, petitioner appeared and answered
properly, final merit list was prepared and separate merit list was prepared
for physically handicapped candidates but name of the petitioner does not
contain therein still remained vacancy for the physically handicapped
candidates.
3. Grievance of the petitioner that only those candidates who
has secured more than 18 marks in language proficiency test have been
selected and their names have been inserted in the provisional merit list, as
such it has been submitted that marks on account of educational
qualification has been segregated and thereby petitioner was not found to
be successful.
According to the petitioner resolution dated 6.8.2013 which
has been issued in the name of His Excellency Governor of Odisha contains
procedure for selection and accordingly the said procedure was to be made
on the basis of the marks secured in the educational qualification with
language proficiency test but the authorities have selected the candidates
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on the basis of marks secured in the written examination which the
authority cannot do due to the following reasons:
(i) Once the authorities have come out with an advertisement based
upon resolution governing recruitment process, prescribing certain terms
and conditions for consideration of the candidates, the same cannot be
changed once process commenced.
(ii) The Odisha Primary Education Programme Authority (OPEPA) has
issued a guideline dated 28.10.2013 for language proficiency test which
prescribes that written test will carry 50 marks and the candidates who
have fulfilled the eligibility criteria will be called for for the test, minimum
qualifying marks in the written test will be 18. According to the petitioner
prescription of minimum qualifying marks as 18 has not been provided in
the resolution dated 6.8.2013, based upon which recruitment process has
been inserted but that has been inserted by an authority of the State of
Odisha and as such it cannot be said to be a decision taken by the State of
Odisha since it is not in the name of His Excellency Governor of Odisha.
4. Learned counsel for the petitioner has relied upon the
judgment of the Hon'ble Supreme Court in the case of K.Manjushree -v-
State of Andhra Pradesh and another reported in (2008)3 SCC 512.
5. On the other hand learned counsel for the opposite party-State
has appeared and filed detail counter affidavit, basing reliance of various
paragraphs of the same it has been submitted that since recruitment as
Sikshya Sahayak has been decided to be made for the remote tribal area of
the State, hence persons knowing multi language will be engaged for
imparting education in remote area of the State and as such OPEPA has
taken decision for selection of candidates on the basis of the percentage of
marks with proficiency in tribal language of the community and accordingly
cut of marks has been fixed so that candidates knowing Multi Lingua has to
be engaged, hence action of the authority is justified.
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6. It has been submitted that the petitioner has secured 16
marks out of 50 and minimum marks has been fixed as 18 which was
the cut-off marks of the guideline dated 28.10.2013 hence the
petitioner has not been selected.
7. Heard learned counsel for the parties and perused the
documents available on record.
8. The fact which has been raised by the petitioner is that once
the resolution has been issued by the Government of Odisha in the name of
His Excellency Governor of Odisha for recruitment of Sikshya Sahayaks the
same cannot be changed, to decide this the conditions are necessary to be
seen as mentioned in the resolution dated 6.8.2013 are:
"Clause-5.3 - The selection shall be made only on merit basis
i.e. on the basis of percentage of marks with proficiency in tribal
language of the community.
Clause 5.3(b) - In respect of ST candidates of the same tribal
community having the qualification of +2 Science/Arts/Commerce or
its equivalent examination declared by appropriate authority with CT
training, the merit list will be pared based on the total percentage of
marks secured by the candidates in HSC examination, Higher
Secondary(+2) examination and 2 year Diploma in Elementary
Education(C.T.) examination."
From perusal of these two conditions selection has to be made
only on the basis of the merit i.e. on the basis of marks with proficiency in
tribal language of the community.
This suggest that selection has to be made on the basis of the
aggregate marks of educational qualification and marks secured in
proficiency test in tribal language. It is further evident from clause 5.3(b)
that merit list will be prepared based on the total percentage of marks
secured by the candidates in HSC examination, Higher Secondary(+2)
examination and 2 year Diploma in Elementary Education(C.T.)
examination. If provision of Clause 5.3 will be read together with clause
5.3(b), decision which was taken for deciding suitability of candidates is the
marks of educational qualification with proficiency in tribal language. Thus
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aggregate marks on these both heads has to be considered for the purpose
of preparing mark list.
9. Petitioner has participated being a physically handicapped
candidate but not selected approached this Court. The State Project
Director,OPEPA has come out with the guideline as contained in Annexure-
A/4 annexed to the counter affidavit filed by the State dated 28.10.2013
wherein following provision has been made.
" The written test will carry 50marks and will contain questions on
Composition, Translation from Odia to Tribal language and from tribal
language to Odia and Grammar. The examination will be of 01 hour's
duration from 11.30 A.M. to 12.30 A.M. All the applicants who have
fulfilled the eligibility criteria will be called for the Test. The minimum
qualifying marks in the written test will be 18 (36% of the full marks of
50)."
Thus the Director, OPEPA has inserted one condition in the original
resolution dated 6.8.2013 by way of corrigendum and on the basis of that
resolution suitability of one or the other candidates has been decided,
petitioner has been given 16 marks which was less than the minimum mark
by virtue of guideline dated 28.10.2013, hence not selected.
10. Petitioner has raised two questions:
(i) As to whether the condition which has been contained in the original
resolution dated 6.8.2013 can be altered once selection process
commenced?
(ii) Can the Director, OPEPA insert any additional condition in the
resolution dated 6.8.2013 which has been issued in the name of His
Excellency Governor of Odisha and as such same is the taken by the
Government, hence Director, OPEPA in individual capacity has no authority
or power to alter, addition or subtract any condition in the decision taken
by the Government.
11. So far as first question is concerned, selection process will be
said to be commenced the date when advertisement was issued and
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selection will be said to be concluded when offer of engagement is issued in
favour of one or the other candidates.
In this case, advertisement was issued on 6.8.2013 which
was on the basis of the resolution dated 6.8.2013 making certain condition
regarding mode of application and engagement etc. in which provision has
been made for preparation of merit list and testing suitability of one or the
other candidates on the basis of the aggregate marks i.e. marks on the
basis of educational qualification and the proficiency test in tribal language.
In the resolution no minimum marks has been prescribed rather there is no
bifurcation of marks for testing suitability of one or the candidates. Specific
stipulation has been made in the resolution dated 6.8.2013 merit list will be
prepared based on the total percentage of marks secured by the candidates
in HSC examination, Higher Secondary(+2) examination and 2 year Diploma
in Elementary Education (C.T.) examination.
According to the petitioner he is eligible and if the authorities
would have followed the method of preparation of merit list, he would have
been selected but the authorities in the midst of the selection process has
come out with a decision having issued by the Director, OPEPA dated
28.10.2013and the method of selecting candidate has been changed by fixing minimum cut-off marks and the said mark has been fixed as 18 i.e. 18 marks secured in the written test out of full marks of 50 is the minimum cut-off marks. This condition is not there in the resolution dated 6.8.2013.
Rule is settled that once selection process started the authorities cannot change method of selection of candidate, this is due to various reason that if anything is to be amended or modified, that will give effect to prospectively not retrospectively because of the reason that candidates who have already participated in the selection process after knowing condition mentioned in the advertisement, they think that selection has been made on the basis of said condition.
7However, it is also settled that selection committee can evaluate in method of selection if not prescribed in the resolution or the advertisement published or issued for the post in question, but if the selection procedure has already been fixed, selection committee cannot changed the same. Reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Ramesh Kumar -v- High Court of Delhi and another reported in AIR 2010 SC 3714 wherein at paragraph-13 it has been held :
"Thus, law on the issue can be summaries to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva voce."
Thus it is settled that if there is no procedure prescribed by the Rule and there is no impediment in law, competent authority may prescribe procedure for the post and minimum Bench Marks in written test as well as for viva voce.
In this case, procedure for selection has already been fixed in the resolution dated 6.8.2013 which was published on 6.8.2013 and the Director, OPEPA has changed the procedure which cannot be said to be in consonance with the proposition of the Hon'ble Supreme Court as referred to above.
12. Situation might be changed if there is no terms and condition or the method of selection is not mentioned, when there is specific condition mentioned for criteria for selection, same cannot be changed in midst of selection process. Reference may be may to the decisions rendered by the Hon'ble Supreme Court in the case of Maharashtra SRTC and others -vs- Rajendra Bhimrao Mandve and others reported in (2001)10 SCC 51 wherein Hon'ble Supreme Court at paragraph-5 held:
"It has been repeatedly held by this Court that the games of the rules meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has 8 commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the Circular Orders dated 24.6.1996, does not merit acceptance in our hand and the same are set aside."
In the case of P.K.Ramachandra Iyer -v- Union of India reported in (1984)2 SCC 141 wherein Hon'ble Supreme Court held :
"This Court was considering the validity of a selection process under the ICAR Rules,1977 which provided for minimum marks only in the written examination and did not envisage obtaining minimum marks in the interview. But the Recruitment Board (ASRB) prescribed a further qualification of obtaining minimum marks in the interview also. This Court observed that the power to prescribe minimum marks in the interview should be explicitly and cannot be read by implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm. This Court held that as there was no power under the Rules for the Selection Board to prescribe the additional qualification of securing minimum marks in the interview, the restriction was impermissible and had a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidates at written test and interview. This Court observed:
"44..... Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of Rules cannot be sustained."
In view of the said stipulation as indicated hereinabove, action of the authorities cannot be said to be justified in not selecting the petitioner by taking into consideration the guideline dated 28.10.2013, hence first question raised by the petitioner has got substance.
13. So far as the second question regarding jurisdiction of the Director, OPEPA in making alteration in the condition of the resolution dated 6.8.2013 of suitability of one or the other candidates, it is settled that authority of the state Government is not authorized to take any decision regarding decision having been taken by the State Government. Resolution dated 6.8.2013 has been issued in the name of His Excellency Governor of Odisha as such resolution dated 6.8.2013 will be said to be order passed by 9 the State Government. It is settled that individual functionary of the State Government has got no power to make any alteration or addition in the decision taken by the State Government. Since resolution dated 6.8.2013 has been passed and issued in the name of His Excellency Governor of Odisha, implied meaning is that same has been approved by the Cabinet of the State as required under Article-166 of the Constitution of India, hence any addition or alteration can only be made adopting the same procedure the basis upon which resolution has been passed and it is not the jurisdiction of individual authority in making any correction, alteration, addition without resorting to the said procedure.
In this connection, reference may be made to the decision of the Hon'ble Supreme Court in the case of Shanti Sports Club and another
-vs- Union of India and others reported in (2009) 15 SCC 705 wherein their Lordships have been pleased to discuss the power of President or the Governor as conferred under Articles 77 and 166 of the Constitution of India and has been pleased to state that if order is passed by the authority not in accordance with Article 77(1) and (2) or Article 166(1) and (2) of the Constitution of India, order cannot be said to be in consequence with conformity with the constitutional process.
This judgment appears relevant in the context of the case because of the reason that the resolution dated 6.8.2013 has been issued in the name of His Excellency Governor of the State said to be passed under Article 166 of the Constitution of India and the Governor has been empowered under Article 166(3) to make rules for more convenient transaction of the business of the State and for the allocation among Ministers of the said business.
Thus, there cannot be any confusion that if the order has been passed by the State Government in the name of His Excellency Governor of the state, it can only be altered, modified, reviewed or rejected by the same process.
10In this writ petition, the petitioner has not challenged engagement already made or not challenged the entire selection process rather he has approached this Court for issuance of direction upon the opposite parties to appoint the petitioner to the post of Sikshya Sahayak for the district of Kandhamal in pursuance to the advertisement under Anenxure-1, hence without making any comment upon the selection already made case of the petitioner deserves to be considered.
14. Accordingly, the matter is remitted before the competent authority to take decision regarding candidature of the petitioner in the light of the resolution dated 6.8.2013 if he will be found to be eligible and suitable on the basis of the parameters fixed therein, consequently order shall be passed within four weeks from the date of receipt of copy of this order.
The writ petition is disposed of.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 6th November,2015/Palai