Orissa High Court
Padmacharan Pujari vs State Of Odisha & Ors. .... Opposite ... on 21 August, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C)(OAC) No.1792 of 2017
In the matter of an application under Section 19 of the
Administrative Tribunal's Act, 1985.
..................
Padmacharan Pujari .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. M.K. Mohanty, Advocate
For Opp. Parties : Mr. M.K. Balabantaray
Addl. Govt. Advocate
Mr. A. Behera, Advocate
(Opp. Party No. 2)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 21.08.2024 and Date of Judgment: 21.08.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Heard Mr. M.K. Mohanty, learned counsel appearing for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate // 2 // appearing for the State and Mr. A. Behera, learned counsel appearing for Opp. Party No. 2. Learned Addl. Govt. Advocate produced copy of letter dt.20.08.2024 so issued by the Dept. Of Higher Education. The same be kept in record.
3. Petitioner has filed the present writ petition inter alia with the following prayer:-
"In view of the facts mentioned in Para-6 above, the applicant prays for the following relief(s):-
The Hon'ble Tribunal may be graciously pleased to allow the Original Application, quash the recommendation agaisnt the post of physically handicapped vide Notice No. 1497 dated 14.03.2017 under Annexure-6 and further direct the respondent No. 2 to recommend the name of the applicant for the post of Junior Lecturer in Odia in O.E.S. (Group-B) Service as partially deaf candidate pursuant to the advertisement No. 6 of 2013-14 and pass such other further order/orders as are deemed just and proper."
4. Learned counsel for the Petitioner contended that pursuant to the advertisement issued under Annexure-1 by Odisha Public Service Commission (in short 'Commission') Petitioner made his application as against the post of Junior Lecturer in the discipline Odia. Page 2 of 16
// 3 // 4.1. It is contended that in the advertisement in question as against the discipline Odia, 42 posts were advertised and out of those 42 posts, one post was reserved for candidate belonging to Partial Deaf (PD). 4.2. It is contended that Petitioner with having the certificate that he belongs to Partial Deaf category, made his application and participated in the selection process. Petitioner was allowed to take part in the written examination pursuant to the admission certificate issued by the Commission under Annexure-3.
4.3. It is contended that Petitioner having come out successful in the written examination, he was allowed to take the viva-voce test vide notice issued on dtd.14.02.2017 under Annexure-4. But thereafter when case of the Petitioner was not recommended as against the discipline Odia under PD category, while recommending 42 candidates in different categories vide notice dtd.14.03.2017 under Annexure-6, the present writ petition was filed with the prayer as indicated hereinabove.
4.4. Learned counsel for the Petitioner contended that since in the advertisement in question one post was reserved for candidates belonging to Partial Deaf and no such candidate was recommended Page 3 of 16 // 4 // while recommending all 42 candidates in the discipline Odia, such action of the Commission is not sustainable in the eye of law and Petitioner's case should have been recommended as Petitioner was allowed to take part in the selection process by appearing the written test and viva voce as having belong to PD category. It is accordingly contended that appropriate direction be issued to the Commission to recommend his name as against the post reserved for Partial Deaf in the advertisement issued under Annexure-1 vide Advertisement No. 06/2013-14.
4.5. It is also contended that the Tribunal while issuing notice of the matter vide order dtd.26.07.2017 passed an interim order to the effect that any appointment made shall be subject to result of the O.A./present writ petition.
5. Mr. A. Behera, learned counsel appearing for the Commission on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that Petitioner while making the application submitted the disability certificate showing his disability to the extent of 45% temporary. But at the time of verification of documents, Petitioner submitted the document enclosed vide Annexure-2 to the present writ petition, wherein disability of the Page 4 of 16 // 5 // Petitioner was indicated at 60% temporary with the stipulation that the condition is likely to improve.
5.1. It is contended that since by the time the selection process was undertaken, a fresh resolution was already issued by the Govt. in the G.A. Department vide Resolution dtd.03.12.2013 under Annexure-A/2 to the counter affidavit, placing reliance on the said resolution, claim of the Petitioner was not recommended as the disability of the Petitioner was temporary as reflected in Annexure-2. 5.2. It is contended that since in terms of the resolution issued on 03.12.2013, only candidates with having permanent disability were made eligible to get the benefit under PH category, claim of the Petitioner was not recommended, even though he qualified in the written examination and viva voce and also called for verification of documents. The stand taken in the Para 6 of the counter affidavit reads as follows:-
"6. That the Petitioner applied under the UR (PWD-HH) category. i.e., partially deaf category and submitted a disability certificate with 45% disability at the time of online application form. However, at the time of document verification, the Petitioner submitted another disability certificate with 60% (HH) disability containing the remark as 'This condition is Likely to Improve (TEMPORARY)'. Hence, his case could not be considered under the physically challenged category. In this Page 5 of 16 // 6 // connection, the copy of the relevant portion of the Resolution of Govt. in GA & PG Department bearing No.34450/Gen, dt.03.12.2013 is annexed herewith and marked as Annexure-
A/2."
5.3. It is accordingly contended that in view of the stipulation contained in Resolution dt.03.12.2013 under Annexure-A/2, Petitioner's name was not recommended in PD category, while recommending all 42 candidates in the discipline Odia. It is accordingly contended that no illegality has been committed by the Commission in not recommending the name of the Petitioner. Learned counsel appearing for Opp. Party No. 2 also contended that since none of the recommended candidate has been impleaded as a Party to the writ petition, the writ petition suffers from non-joinder of necessary party and not entertainable.
6. To the stand taken in the counter, Mr. Mohanty, learned counsel for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. It is contended that since the resolution dtd.03.12.2013 was not in force by the time the advertisement in question was issued by the Commission on 18.07.2013 under Annexure-1, non-recommendation of the case of the Petitioner basing on the said resolution is not just and proper and Petitioner's case Page 6 of 16 // 7 // should have been recommended as Petitioner qualified both the written and viva-voce test and called for verification of documents. 6.1. In support of his aforesaid submission, Mr. Mohanty relied on the provisions contained under Rule 4 & 6 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Odisha Rules, 2003. Sub-Rule 5(i) & (ii) of Rule 4 & Rule 6 of the Rules reads as follows:-
"(5) The Medical Authority, after due examination-
(i) shall give a permanent disability certificate in case where there are no chances of variation, over time, in the degree of disability,
(ii) shall indicate the period of validity in the certificate in cases where there is any chance of variation, over time, in the degree of disability; and
6. Certificate issued under rule 4 to be generally valid for all purposes: A certificate issued under rule 4 shall render a person eligible to apply for facilities, concessions and benefits admissible under any scheme of Govemment or non-
Government organisations, subject to such conditions as the central Government or the state Government may impose from time to time in this regard.]"
6.2. Learned counsel for the Petitioner accordingly contended that by the time the advertisement under Annexure-1 was issued, provisions contained under the aforesaid Rules were governing the field and Petitioner was eligible to participate in the selection process and was Page 7 of 16 // 8 // also allowed by the Commission. It is contended that the ground indicated in the counter for not recommending the Petitioner so reflected in Para 6 of the counter of Opp. Party No. 2 is not sustainable in the eye of law. In support of his submission, learned counsel for the Petitioner relied on the following decisions:-
1. Union of India Vs. Tushar Ranjan Mohanty, 1994 (5) SCC 450
2. Assistant Excise Commissioner, Kottayam & Ors. Vs. Esthappan Cherian & Anr., (2021) 10 SCC 210
3. Anmol Kumar Mishra (Minor) Vs. Union of India & Ors., (2021 SCC OnLine Del 5148) 6.3. Hon'ble Apex Court in Para 13 & 14 of the Judgment in the case of Tushar Ranjan Mohanty has held as follows:-
"13. Finally this Court considered the effect of retrospective legislation on the vested rights of the affected persons in P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 :
(1987) 4 ATC 272] Under the U.P. Service of Engineers (Buildings & Roads Branch) Class II Rules, 1936, the Assistant Engineers substantively appointed against temporary vacancies became members of the service and were entitled to seniority on the basis of continuous length of service. The Rules were amended in the years 1969 and 1971 wherein it was provided that the Assistant Engineers would only become members when they are selected and appointed against the quota meant for them and their seniority would be determined only from the date of order of appointment in substantive vacancies. These amendments were made with retrospective effect thereby taking away the vested rights of the Assistant Engineers appointed against temporary posts. The High Court held the retrospective amendment of the rules to be arbitrary and unconstitutional. This Court upheld the judgment of the High Court on Page 8 of 16 // 9 // the following reasoning: (SCC p. 637, para 16; p. 638, para 18; p.
639, para 18) "It has been urged that Government has the power to amend rules retrospectively and such rules are quite valid. Several decisions have been cited of this Court at the bar. Undoubtedly, the Government has got the power under proviso to Article 309 of the Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospective amendments cannot take away the vested rights and the amendments must be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution .... As has been stated hereinbefore, the Assistant Engineers who have already become members of the Service on being appointed substantively against temporary posts have already acquired the benefit of 1936 Rules for having their seniority computed from the date of their becoming member of the service. 1969 and 1971 Amended Rules take away this right of these temporary Assistant Engineers by expressly providing that those Assistant Engineers who are selected and appointed in permanent vacancies against 50 per cent quota provided by Rule 6 of the Amended 1969 Rules will only be considered for the purpose of computation of seniority from the date of their appointment against permanent vacancies. Therefore the temporary Assistant Engineers who are not only deprived of the right that accrued to them in the matter of determination of their seniority but they are driven to a very peculiar position inasmuch as they are to wait until they are selected and appointed against permanent vacancies in the quota set up for this purpose by the amended Rule 6.... These amendments are not only disadvantageous to the future recruits against temporary vacancies but they were made applicable retrospectively from 1-3-1962 even to existing officers recruited against temporary vacancies through Public Service Commission. As has been stated hereinbefore that the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of the Constitution."
14. The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a Page 9 of 16 // 10 // person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation." 6.4. Similarly, Hon'ble Apex Court in Para 16, 17 & 22 of the Judgment in the case of Esthappan Cherian has held as follows:-
"16. There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary. In CIT v. Vatika Township (P) Ltd. [CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1] this Court, speaking through a Constitution Bench, observed as follows : (SCC pp. 21-22, paras 28-29) "28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.
Ltd. [L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 (HL)] Page 10 of 16 // 11 // Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
17. Another equally important principle applies : in the absence of express statutory authorisation, delegated legislation in the form of rules or regulations, cannot operate retrospectively. In CIT v. M.C. Ponnoose [CIT v. M.C. Ponnoose, (1969) 2 SCC 351 : (1970) 1 SCR 678] this rule was spelt out in the following terms : (SCC p. 354, para
5) "5. ... The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the persons or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect."
xxx xxx xxx
22. In these circumstances, and having regard to the principle that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment, it is held that there is no infirmity with the judgment of the High Court."
Page 11 of 16
// 12 // 6.5. Hon'ble High Court of Delhi in Para 14 & 15 of the Judgment in the case of Anmol Kumar Mishra has held as follows:-
"14. The petitioner placed the entire matter before the IITs by way of correspondence prior to filling up his form or taking the JEE. He was advised that he was eligible under the PwD category, subject to a valid PwD certificate and other eligibility criteria. The validity of his certificate is not in issue. What is now being raised is that a temporary disability is a disqualification to avail of the reservation. The fact that the petitioner's disability was temporary and his certificate was valid only for a period of one year was disclosed by him in his correspondence. The position taken by the respondents in their response to his emails is, in my view, consistent with the Act and the Guidelines. To the contrary, the contention in the impugned communication dated 09.11.2021 is that he is not eligible for the very reason that he had disclosed to the respondents.
15. This is an unduly restrictive interpretation. The Act is a beneficial legislation. While dealing with an earlier legislation on the same subject2, the Supreme Court observed that the said Act was a social legislation for the benefit of PwDs and must be interpreted in order to fulfill its objectives3. The principle that beneficial legislations must be construed liberally with the objective of furthering their purpose is well settled4, and the same understanding must inform the interpretation of the Act. I am of the view that the impugned communication tends to adopt a restrictive interpretation which is not consistent with the object of the legislation. Of course, the benefits of the Act should be conferred upon those the legislature intended to be benefitted, but the Act does not make the distinction which the respondents have read into the legislative scheme."
6.6. With regard to the stand taken by the learned counsel appearing for the Commission regarding maintainability of the writ petition on the ground that non-joinder of the necessary party, learned counsel for the Petitioner contended that since no candidate was recommended in the category P.D. vide the impugned notice issued by the Commission Page 12 of 16 // 13 // on 14.03.2017 under Annexure-6, there was no necessity to implead any of the selectee as a Party to the writ petition.
7. Mr. A. Behera, learned counsel appearing for the Commission with regard to applicability of the resolution issued under Annexure-A/2 to the case of the Petitioner relied on a decision of the Hon'ble Apex Court in the case of Sree Sankaracharya University of Sanskrit & Ors. Vs. Dr. Manu & Anr. (2023 SCC OnLine SC 640). 7.1. Hon'ble Apex Court in Para 46 of the said Judgment has held as follows:-
"46. In order to effectively deal with the aspect as to retrospective operation of the Government Order dated 29th March, 2001 it may be useful to refer to the following extract from the treatise, Principles of Statutory Interpretation, 11th Edition (2008) by Justice G.P. Singh on the sweep of a clarificatory/declaratory/explanatory provision:
"The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective.
[...] An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely Page 13 of 16 // 14 // declaratory of the previous law, retrospective operation is generally intended. The language 'shall be deemed always to have meant' or 'shall be deemed never to have included' is declaratory and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law."
[Emphasis by us]
8. Learned Addl. Govt. Advocate relying on the instruction provided by the Department vide letter dt.28.08.2024 contended that as agaisnt the 42 candidates recommended by the Commission in the discipline Odia, 41 candidates were issued with order of appointment vide Notification dt.10.07.2017.
9. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that in terms of the advertisement issued under Annexure-1, Petitioner made his application as against the post of Junior Lecturer in the discipline Odia. As found from the advertisement, as against the 42 posts so advertised, one post was kept reserved for candidates belonging to Page 14 of 16 // 15 // Partial Deaf category. It is not disputed that Petitioner belongs to that category and he made his application in that regard, which was duly accepted by the Commission. Since no candidate in the category P.D. was recommended by the Commission while issuing the impugned notice dtd.14.03.2017 under Annexure-6, this Court is unable to accept the contention of the learned counsel appearing for Opp. Party No. 2 regarding maintainability of the writ petition on the ground of non-joinder of necessary party.
9.1. It is also found from the record that Petitioner's application after being accepted, he was allowed to take part in the written test as well as in the viva-voce test. Petitioner after qualifying both written and the viva-voce test he was called for verification of documents. But his case was not recommended on the ground that Petitioner's disability is of temporary nature and in view of the resolution issued under Annexure-A/2 to the counter, he is not eligible to get the benefit of appointment.
9.2. This Court placing reliance on the decisions in the case of Tushar Ranjan Mohanty, Esthappan Cherian and Anmol Kumar Mishra and provisions contained under the 2003 Rules is of the view that Annexure-A/2 was not in force by the time the advertisement under Page 15 of 16 // 16 // Annexure-1 was issued. Therefore, resolution issued under Annexure- A/2 cannot be made applicable to the case of the Petitioner. The decision relied on by the learned counsel for the Petitioner as per the considered view of this Court is not applicable to the facts of the present case.
9.3. In view of the same and the fact that as against 42 candidates recommended by the Commission, 41 candidates have been provided with appointment vide Notification dtd.10.07.2017, this Court while disposing the writ petition, directs Opp. Party-Commission to recommend the name of the Petitioner as against the discipline Odia in the category Partially Deaf within a period of two (2) weeks from the date of receipt of this order. On such recommendation being made, Opp. Party No. 1 shall provide appointment to the Petitioner with issuance of notification within a period of 2 (two) weeks from the date of receipt of the recommendation.
10. The writ petition is disposed of accordingly. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack (BIRAJA PRASANNA SATAPATHY) Date: 27-Aug-2024 12:17:53 JUDGE Orissa High Court, Cuttack Dated the 21st of August, 2024/Sneha Page 16 of 16