Orissa High Court
Sitaram Pujari vs State Of Orissa & Others on 7 April, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 2134 of 2014
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Sitaram Pujari ......... Petitioner
-versus-
State of Orissa & Others ......... Opp. Parties
For Petitioner : M/s K.K. Swain, P.N. Mohanty, B. Jena,
R.P. Das & P.K. Mohanty
For O.P. No.2 : M/s. S.S Routray, A.P. Bose, N. Hota &
Mrs. V.Kar
For O.P.No.3 : M/s. D.P. Dhal, SK. Dash,
S. Mohapatra & A. Sethi
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 23.03.2015 | Date of judgment: 07.04.2015
Dr. B.R.Sarangi, J.The petitioner, who is a candidate for the post of Amin of the N.A.C., Binka in the district of Subarnapur has filed this application to quash the selection of opposite party no.3, the select list and the engagement order issued in favour of opposite party no.3. He has further prayed for a direction to make a fresh selection/re- selection for the post of Amin by awarding marks in Training 2 examination and the viva voice marks in conformity with the advertisement issued in Annexure-1.
2. The short facts of the case in hand is that an advertisement was issued by the Executive Officer, N.A.C., Binka on 18.05.2013 to fill up the post of Amin in the said N.A.C. to which the petitioner applied along with other eligible candidates. Accordingly, call letter was issued to him on 22.06.2013 calling upon him to attend the interview (viva voice) on 03.07.2013 at 11 A.M. in the office of the N.A.C., Binka. On the basis of the interview held, a select list was published on 19.07.2013 wherein opposite party no.3 was selected having stood first vide Annexure-3. Since no mark was given for Amin Training Examination, on the basis of the information received on R.T.I. Act, the petitioner has approached this Court claiming that the selection of opposite party no.3 should be quashed.
3. Mr. B. Jena, learned counsel for the petitioner strenuously urged that pursuant to advertisement made in Annexure- 1, a selection committee was constituted and it was decided by the Committee to select the candidates taking into account the following five criterias:
(a) 10% marks in matriculation examination.
(b) 10% marks in +2 examination/qualification
(c) 10 marks for experience 3
(d) 10 marks for Computer knowledge
(e) 10 marks for viva voice test.
Accordingly, the selection was conducted. It is urged that the petitioner has secured 5% marks in H.S.C. Examination, 8.6% in +2 Examination out of full marks 10 and in the viva voice he has been awarded low marks. Therefore, the petitioner was not selected.
Though he has secured good marks in Amin Training Examination, that mark has not been taken into consideration otherwise, he would have secured more marks in the interview. It is further urged that so far as viva voice test is concerned, the selection Committee awarded marks taking the full mark as 50 instead of 10, but subsequently marks secured out of 50 has been converted to 10 for determination of merits. It is further urged that such awarding of marks is arbitrary and unreasonable. To substantiate his contention, learned counsel for the petitioner has relied upon P. Mohan Pillai v. State of Kerala and Ors, AIR 2007 SC 2840.
4. Mr. A.P. Bose, learned counsel for opposite party no.2 strenuously urged that there is no contravention of any provisions or guideline framed by the Selection Committee and marks have been awarded in conformity with the decisions taken by the said Selection Committee. As such no illegality or irregularity has been committed by the said Committee while awarding marks in viva voice test treating the full mark as 50 and subsequently calculating the same taking the full mark as 10. Therefore, the selection having been done in 4 conformity with the provisions of law, this Court may not interfere with the same.
5. Mr. S.K. Das, learned counsel for opposite party no.3 submits that opposite party no.3 having been selected and stood first in the list by following due procedure in conformity with the advertisement and also the procedure evolved by the Selection Committee, interference of this Court at this stage will cause great prejudice to opposite party no.3
6. Considering the contentions raised by the parties and after going through the records, it appears that an advertisement was issued for recruitment to the post of Amin by the Executive Officer, Binka N.A.C. in the district of Subarnapur vide Annexure-1, pursuant to which the petitioner along with others applied for the same. After scrutiny of the applications, call letter was issued to the petitioner to attend the interview (viva voce test) for appointment to the post of Amin vide Annexure-2 dated 22.06.2013 wherein the interview (Viva Voce) was scheduled to be held on 03.07.2013 at 11.00 A.M in the office of N.A.C., Binka. The Chairman of the N.A.C. approved the criteria of the selection of the candidates wherein it was decided that basing upon the percentage of marks secured in matriculation and +2 examination and the marks awarded by the District Informatics Officer, NIC, Subarnapur in Computer Practical test and the marks awarded by the Selection Committee on Viva Voce test selection should be made. Though the percentage of marks awarded in final 5 Amin examination was one of the criteria of selection which was initially approved under Clause-2, the same has been scored through and in Annexure-4 criteria was re-numbered as Sl. No.1 to 4 instead of 1 to 5. In course of hearing, it was clarified by Mr. B. Jena, learned counsel for the petitioner that since the advertisement did not contain any stipulation with regard to the awarding of marks in the Amin Examination, therefore, the same has been scored through. Consequently, the authorities have not committed any illegality or irregularity by conducting selection excluding such condition of awarding marks in Amin examination. Learned counsel for the petitioner submits that though 10 marks were fixed for Viva Voce test, the same has been followed. But, the evaluation in viva voce has been done treating the full marks as 50. Thereafter, conversion has been made treating the full marks as 10 which is illegal and arbitrary. Reliance was placed on P. Mohanan Pillai (supra) by the learned counsel for the petitioner in which reference has been made to Paragraph-15 in Indra Prakash Gupta v. State of Jammu & Kashmir & other, (2004) 6 SCC 786 wherein three Judges Bench opined in Paragraphs-34 and 36 is as follows:
"34. It is true that for allocation of marks for viva voce test, no hard-and-fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India
36. We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as 6 regards qualification, experience, etc. but could also take viva voce test. But marks allotted therefore should indisputably be within a reasonable limit. Having regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast".
7. The judgment relied upon by the learned counsel for the petitioner makes it clear that for allocation of marks for Viva Voce test, no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. Therefore, the determination of marks in Viva Voce test taking the full marks 50 by five of the examiners who have awarded marks and subsequently, converting the same treating the full marks as 10 and added to the optional list of marks, this Court is of the considered view that by this no illegality or irregularity has been committed and as such the ratio decided in P. Mohanan Pillai (supra) is applicable to the case of opposite party instead of the petitioner.
8. On perusal of the consolidated marks secured by the petitioner on 03.07.2013 which has been annexed to Annexure-3, the determination has been made taking into consideration the criteria fixed by the Selection Committee by which the petitioner secured 18.2 marks whereas opposite party no.3 secured 21.4 marks having stood first and a panel has been prepared taking into account the marks secured as a result of which one D.K. Panda who secured 20.4 marks 7 stood second and R.K. Gupta who secured 19.9 stood third. As it appears so far as Vocational training certificate is concerned the petitioner has not acquired the qualification of Amin from any institute rather he is trained as Fitter Trade from Sushree ITC, Bolangir. But the petitioner having got experience was allowed to participate in the process of selection and having not come out successful he cannot turn around and challenge the same by filing writ petition.
9. The petitioner having participated in the process of selection, took a calculated chance to get himself selected at the said Viva Voce test and only because he could not find himself to emerge successful as a result of his performance, he has filed this application.
10. In Om Prakash Shukla v. Akhilesh kumar Shukla, AIR 1986 SC 1043, the apex Court held that " when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have interfered and granted any relief to such a petitioner".
11. In Madanlal & Other v. State of Jammu & Kashmir AIR 1995 SC 1088 the apex Court also held that "if a candidate takes calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he can not turn around and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted". 8
12. In view of the aforesaid facts and circumstances, the result of the interview test on merit cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful and above all, this Court cannot sit as a court of appeal and try to re- assess the relative merits of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before the Court that he was given less marks though his performance was better. Therefore, the assessment of merits as made by an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of the appellate body, therefore, this Court certainly cannot act as a Court of appeal over the assessment made by an expert committee.
13. In this view of the matter, this Court is not inclined to interfere with the selection done by the committee by following due procedure of law. Accordingly, the writ petition merits no consideration and the same is dismissed.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 7th April, 2014/Alok