Orissa High Court
Sri Satyabrata Samantasinghar vs State Of Odisha on 10 July, 2024
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.12065 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Sri Satyabrata Samantasinghar Aged 27 years Son of Sri Niranjan Samantasinghar At/P.O.: Naharakanta, Bhubaneswar District: Khordha. ... Petitioner.
-VERSUS-
1. State of Odisha Represented through Commissioner-cum-Secretary to Government Health and Family Welfare Department, Odisha Bhubaneswar, District: Khordha.
2. Odisha Public Service Commission Represented through Secretary, Odisha At: Cantonment Road, Cuttack. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Prasanta Kumar Mishra, Kamal Lochan Kar and Sidhant Mishra, Advocates For the Opposite party : Ms. Saswata Patnaik No.1 Additional Government Advocate For the Opposite party : M/s. Bibhu Prasad Tripathy, W.P.(C) No.12065 of 2023 Page 1 of 48 No.2 Ramdas Achary & Narayan Barik, Advocates For the interveners : M/s. Bigyan Kumar Sharma, Sudeepta Kumar Singh, Ms. Itishree Tripathy, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 03.07.2024 :: Date of Judgment : 10.07.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
With a prayer to quash the written examination held on 19.03.2023 for the post of Drugs Inspector (Group-B) under the Health and Family Welfare Department pursuant to Advertisement No.08 of 2022-23 (Annexure-
4) published in the website of the Odisha Public Service Commission-- http://opsc.gov.in-- the petitioner has approached this Court invoking provisions under Articles 226 and 227 of the Constitution of India, assailing that the Test Booklet containing questions set for examination of 8 subjects are contrary to the prescription of Rule 6(4) of the Odisha Drugs Control Service [Drugs Control Administration] (Methods of Recruitment and Conditions of Service) Rules, 2020.
W.P.(C) No.12065 of 2023 Page 2 of 48THE FACTS:
2. The facts adumbrated in the writ petition reveals that the petitioner, applicant for the post of Drugs Inspector (Group-B) under the Health and Family Welfare Department in response to the advertisement bearing No.08, dated 2022-23 issued by the opposite party No.2-
Odisha Public Service Commission (for short referred to as "OPSC"), after appearing in the examination held on 19.03.2023 by dint of admission certificate issued on 10.03.2023, could ascertain that the questions set in the Test Booklets (Annexure-6), are in deviation of subject- wise marking pattern prescribed under Rule 6(4) of the Odisha Drugs Control Service [Drugs Control Administration] (Methods of Recruitment and Conditions of Service) Rules, 2020 ("ODCS Rules", for brevity).
2.1. Rule 6(4) of the ODCS Rules, 2020 requires the examination to comprise of 25 marks (twenty-five) in each of the 8 subjects in respect of which the questions are set in the Test Booklet specifying each question shall carry 01 (one) mark. Therefore, it is alleged at paragraph 10 of the writ petition that in the examination, the Test Booklet comprised of eight subjects, but without adhering to the norm prescribed for allocation of marks.
2.2. Paragraph 10 of the writ petition is extracted hereunder for better appreciation of facts:
W.P.(C) No.12065 of 2023 Page 3 of 48"That the petitioner humbly submits that violating the Rule 6(4)(c) of the Odisha Drugs Control Service [Drugs Control Administration] (Methods of Recruitment and Conditions of Service) Rules, 2020 and Clause 6(c) of advertisement under Annexure-4, the opposite party No.2 had prepared the question papers/Test Booklet from 8 subjects on his own without maintaining parity as provided under Rules in the manner given below;
Sl. No. Subject Marks
1 Pharmaceutical Chemistry and Medicinal 13
Chemistry
2 Pharmacology 48
3 Pharmaceutics 25
4 Pharmacognosy & Phytochemistry 26
5 Pharmaceutical Analysis 25
6 Pharmaceutical Biochemistry & 22
Pharmaceutical Microbiology
7 Human Anatomy & Physiology 24
8 Hospital Pharmacy, Clinical Pharmacy and 17
Forensic Pharmacy
Total= 200
Based on aforesaid defective Test Booklet, the
examination was conducted."
2.3. The grievance of the petitioner is that each subject should have comprised of twenty-five marks, but the questions in the Test Booklet supplied to the petitioner was in contravention of the manner prescribed in the Rule. Therefore, with the following prayers the petitioner has filed this writ petition:
"In view of the facts and circumstances stated above, it is prayed, therefore that this Hon'ble Court may graciously be pleased to;
Admit and allow the petition and;W.P.(C) No.12065 of 2023 Page 4 of 48
Quash the written examination held on 19.03.2023 for the post of Drugs Inspector pursuant Advertisement No.8 of the year 2022-23 at Annexure-4 and;
Further be pleased to direct the Opp. Party No.2 to conduct written examination for the post of Drugs Inspector pursuant to Advertisement No.8 of the year 2022-23 afresh by preparing questions/Test Booklets in terms of Sub-Rule-4(b) and (c) of Rule-6 of Odisha Drugs Control Service [Drugs Control Administration] (Methods of Recruitment and Conditions of Service) Rules, 2020 within a stipulated period of time.
Pass such other order (s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief/justice to the petitioner;
And for this act of kindness, the petitioner as in duty bound shall ever pray."
RESPONSE OF THE OPPOSITE PARTY NO.2:
3. Refuting the challenge as laid by the petitioner, the opposite party No.2-OPSC admitted that the question setters were instructed to provide twenty-five numbers of question from each subject mentioned in the syllabus. It is submitted that the Office of the opposite party No.2- OPSC had constituted a Committee of Experts to examine the matter. The Committee has submitted the following report:
"SUBJECT-WISE ANALYSIS OF QUESTION PAPER Q.S. Subject as per Petitioner Subject as per Expert No. W.P.(C) No.12065 of 2023 Page 5 of 48 1 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 2 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 3 Pharmacology Pharmacology 4 Pharmacology Pharmacology 5 Pharmacology Pharmacology 6 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 7 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 8 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 9 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 10 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 11 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 12 Pharmacology Pharmaceutical Chemistry & Medicinal Chemistry 13 Pharmaceutical Biochemistry Pharmachemistry, also and Pharmaceutical Pharmaceutical Microbiology Biochemistry & Pharmaceutical Microbiology 14 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 15 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 16 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 17 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 18 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 19 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 20 Pharmacology Pharmacology 21 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 22 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry 23 Pharmaceutical Chemistry Pharmaceutical Chemistry and Medicinal Chemistry and Medicinal Chemistry 24 Pharmacology Pharmaceutical Chemistry W.P.(C) No.12065 of 2023 Page 6 of 48 and Medicinal Chemistry 25 Pharmacology Pharmacology 26 Pharmacology Pharmaceutical Chemistry and Medicinal Chemistry also Pharmaceutics 27 Pharmaceutics Pharmaceutics 28 Pharmaceutics Pharmaceutical Chemistry and Medicinal Chemistry also Pharmaceutics 29 Pharmaceutics Pharmaceutics 30 Pharmaceutics Pharmaceutics 31 Pharmaceutics Pharmaceutics 32 Pharmaceutics Pharmaceutics 33 Pharmaceutics Pharmaceutics 34 Pharmaceutics Pharmaceutics 35 Pharmaceutics Pharmaceutics 36 Pharmaceutics Pharmaceutics 37 Pharmaceutics Pharmaceutics 38 Pharmaceutics Pharmaceutics 39 Pharmaceutics Pharmaceutics 40 Pharmaceutics Pharmaceutics 41 Pharmaceutics Pharmaceutics 42 Pharmaceutics Pharmaceutics 43 Pharmaceutics Pharmaceutics 44 Pharmaceutics Pharmaceutics 45 Pharmaceutics Pharmaceutics 46 Pharmaceutics Pharmaceutics 47 Pharmaceutics Pharmaceutics 48 Pharmaceutics Pharmaceutics 49 Pharmaceutics Pharmaceutics 50 Pharmaceutics Pharmaceutics 51 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 52 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 53 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 54 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 55 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 56 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 57 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry W.P.(C) No.12065 of 2023 Page 7 of 48 58 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 59 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 60 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 61 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 62 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 63 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 64 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 65 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 66 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 67 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 68 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 69 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 70 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 71 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 72 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 73 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 74 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 75 Pharmacognosy & Pharmacognosy & Phytochemistry Phytochemistry 76 Pharmaceutical Analysis Pharmaceutical Analysis 77 Pharmaceutical Analysis Pharmaceutical Analysis 78 Pharmaceutical Analysis Pharmaceutical Analysis 79 Pharmaceutical Analysis Pharmaceutical Analysis 80 Pharmaceutical Analysis Pharmaceutical Analysis 81 Pharmaceutical Analysis Pharmaceutical Analysis 82 Pharmaceutical Analysis Pharmaceutical Analysis 83 Pharmaceutical Analysis Pharmaceutical Analysis 84 Pharmaceutical Analysis Pharmaceutical Analysis 85 Pharmaceutical Analysis Pharmaceutical Analysis W.P.(C) No.12065 of 2023 Page 8 of 48 86 Pharmaceutical Analysis Pharmaceutical Analysis 87 Pharmaceutical Analysis Pharmaceutical Analysis 88 Pharmaceutical Analysis Pharmaceutical Analysis 89 Pharmaceutical Analysis Pharmaceutical Analysis 90 Pharmaceutical Analysis Pharmaceutical Analysis 91 Pharmaceutical Analysis Pharmaceutical Analysis 92 Pharmaceutical Analysis Pharmaceutical Analysis 93 Pharmaceutical Analysis Pharmaceutical Analysis 94 Pharmaceutical Analysis Pharmaceutical Analysis 95 Pharmaceutical Analysis Pharmaceutical Analysis 96 Pharmaceutical Analysis Pharmaceutical Analysis 97 Pharmaceutical Analysis Pharmaceutical Analysis 98 Pharmaceutical Analysis Pharmaceutical Analysis 99 Pharmaceutical Analysis Pharmaceutical Analysis 100 Pharmaceutical Analysis Pharmaceutical Analysis 101 Pharmacognosy & Pharmaceutical Phytochemistry Biochemistry & Pharmaceutical Microbiology 102 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 103 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 104 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 105 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 106 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 107 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 108 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical W.P.(C) No.12065 of 2023 Page 9 of 48 Microbiology 109 Pharmacology Pharmaceutical Biochemistry & Pharmaceutical Microbiology 110 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 111 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 112 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 113 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 114 Pharmaceutical Chemistry Pharmaceutical and Medicinal Chemistry Biochemistry & Pharmaceutical Microbiology 115 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 116 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 117 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 118 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 119 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 120 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & W.P.(C) No.12065 of 2023 Page 10 of 48 Microbiology Pharmaceutical Microbiology 121 Hospital Pharmacy, Clinical Pharmaceutical Pharmacy and Forensic Biochemistry & Pharmacy Pharmaceutical Microbiology 122 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 123 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 124 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 125 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 126 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 127 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 128 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 129 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 130 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 131 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 132 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 133 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy W.P.(C) No.12065 of 2023 Page 11 of 48 134 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 135 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 136 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 137 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 138 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 139 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 140 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 141 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 142 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 143 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 144 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 145 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 146 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 147 Pharmacology Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 148 Hospital Pharmacy, Clinical Hospital Pharmacy, Pharmacy and Forensic Clinical Pharmacy and Pharmacy Forensic Pharmacy 149 Pharmacology Hospital Pharmacy, W.P.(C) No.12065 of 2023 Page 12 of 48 Clinical Pharmacy and Forensic Pharmacy 150 Pharmaceutical Chemistry Hospital Pharmacy, and Medicinal Chemistry Clinical Pharmacy and Forensic Pharmacy 151 Pharmacology Pharmacology also Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 152 Pharmacology Pharmacology also Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy 153 Pharmaceutics Pharmacology 154 Pharmacology Pharmacology 155 Pharmacology Pharmacology also Pharmacognosy & Phytochemistry 156 Pharmacology Pharmacology 157 Pharmacology Pharmacology 158 Pharmacology Pharmacognosy & Phytochemistry 159 Pharmacology Pharmacology also Hospital Pharmacy, Clinical Pharmacy and Forensic Pharmacy and Pharmaceutical Biochemistry & Pharmaceutical Microbiology 160 Pharmacology Pharmacology 161 Pharmaceutical Biochemistry Pharmaceutical & Pharmaceutical Biochemistry & Microbiology Pharmaceutical Microbiology 162 Pharmacology Pharmacology 163 Pharmacology Pharmacology 164 Pharmacology Pharmacology 165 Pharmacology Pharmacology 166 Pharmacology Pharmacology 167 Pharmacology Pharmacology 168 Pharmacology Pharmacology 169 Pharmacology Pharmacology 170 Pharmacology Pharmacology 171 Pharmacology Pharmacology 172 Pharmacology Pharmacology W.P.(C) No.12065 of 2023 Page 13 of 48 173 Pharmacology Pharmacology 174 Pharmacology Pharmacology 175 Pharmacology Pharmacology 176 Human Anatomy & Human Anatomy & Physiology Physiology 177 Human Anatomy & Human Anatomy & Physiology Physiology 178 Human Anatomy & Human Anatomy & Physiology Physiology 179 Human Anatomy & Human Anatomy & Physiology Physiology 180 Human Anatomy & Human Anatomy & Physiology Physiology 181 Human Anatomy & Human Anatomy & Physiology Physiology 182 Human Anatomy & Human Anatomy & Physiology Physiology 183 Human Anatomy & Human Anatomy & Physiology Physiology 184 Human Anatomy & Human Anatomy & Physiology Physiology 185 Human Anatomy & Human Anatomy & Physiology Physiology 186 Human Anatomy & Human Anatomy & Physiology Physiology 187 Human Anatomy & Human Anatomy & Physiology Physiology 188 Hospital Pharmacy, Clinical Human Anatomy & Pharmacy and Forensic Physiology also Hospital Pharmacy Pharmacy, Clinical Pharmacy and Forensic Pharmacy 189 Human Anatomy & Human Anatomy & Physiology Physiology 190 Human Anatomy & Human Anatomy & Physiology Physiology 191 Human Anatomy & Human Anatomy & Physiology Physiology 192 Human Anatomy & Human Anatomy & Physiology Physiology 193 Human Anatomy & Human Anatomy & Physiology Physiology 194 Human Anatomy & Human Anatomy & Physiology Physiology 195 Human Anatomy & Human Anatomy & Physiology Physiology W.P.(C) No.12065 of 2023 Page 14 of 48 196 Human Anatomy & Human Anatomy & Physiology Physiology 197 Human Anatomy & Human Anatomy & Physiology Physiology 198 Human Anatomy & Human Anatomy & Physiology Physiology 199 Human Anatomy & Human Anatomy & Physiology Physiology 200 Human Anatomy & Human Anatomy & Physiology Physiology Abstract Pharmaceutical Chemistry and 21 Medicinal Chemistry Pharmacology 28 Pharmaceutics 23 Pharmacognosy & 26 Phytochemistry Pharmaceutical Analysis 25 Pharmaceutical Biochemistry & 25 Pharmaceutical Microbiology Human Anatomy & physiology 25 Hospital Pharmacy, Clinical 27 Pharmacy and Forensic Pharmacy
4. It is explained that by the opposite party No.2-OPSC that "Pharmaceutical Chemistry and Medicinal Chemistry", "Hospital & Clinical Pharmacy" and "Pharmacology" are inter-related subjects, whereas "Pharmaceutical Analysis" is a part of "Pharmaceutical Chemistry". Therefore, it is submitted that inter-subject overlapping is not uncommon and strict subject-wise segregation would be misleading. It is further submitted that the question as set is balanced one, covering the entire syllabus and chapters with "by and large equal weightage to individual subjects".
W.P.(C) No.12065 of 2023 Page 15 of 48HEARING:
5. An I.A. being No.4265 of 2024 has been filed at the behest of Prasanta Sethy, Rabina Das and Amit Kumar Meher, who wish to intervene in the present proceeding by claiming that they have appeared in the test conducted by the OPSC in response to Advertisement No.08 of 2022-23 and Sri Bigyan Kumar Sharma, learned Advocate appearing for the interveners stated that they have already appeared before the Board on 14.09.2023 and 15.09.2023 for verification of documents. However, in view of interim Order dated 20.04.2023 that "selection process may continue, final result shall not be published without leave of this Court till the next date", which got extended from time to time, the results have not been published, thereby the examinees have vital interest in the outcome of this case.
5.1. Mr. Prasanta Kumar Mishra, learned counsel for the petitioner, objecting to entertainment of intervention petition, submitted that the pleadings in this matter have been completed and the matter can be taken up for final hearing, to which the learned counsel for the opposite parties including the interveners have no objection.
W.P.(C) No.12065 of 2023 Page 16 of 485.2. Accordingly, this matter was heard on 03.07.2024, on which date the hearing was concluded. The matter was kept reserved for delivery of judgment.
Arguments advanced by learned counsel for the parties:
6. Sri Prasanta Kumar Mishra, learned counsel for the petitioner commenced his argument by submitting that it is not disputed by the opposite party No.2-OPSC, examiner, that though total marks of 200 has been mentioned in the Advertisement in question comprising 8 different specified subjects under the heading "Method of Selection" in Clause 6 thereof, questions in the Test Booklet did not allocate twenty-five marks in each subject, which is a requirement prescribed under clause
(c) of sub-rule (4) of Rule 6 of the ODCS Rules, 2020. It is, therefore, contended that, there cannot be two opinions, but to scrap the entire examination.
6.1. Stemming on a Co-ordinate Bench decision of this Court vide judgment dated 10.11.2022 rendered in Manas Ranjan Sahu & Another Vrs. State of Odisha and Others, W.P.(C) No.7138 of 2022 and W.P.(C) No.11120 of 2022 against which the writ appeals being W.A. No.1456 of 2023 and W.A. No.1445 of 2023 preferred by the Government of Odisha have been dismissed in the Division Bench on 16.10.2023 and 19.10.2023 respectively, learned counsel submitted that identical W.P.(C) No.12065 of 2023 Page 17 of 48 issue being involved in the present case, the writ petition at the behest of the petitioner-examinee deserves to be allowed and the OPSC be directed to conduct examination afresh in conformity with the ODCS Rules.
7. Sri Bibhu Prasad Tripathy, learned counsel appearing for the opposite party No.2-OPSC with his usual vehemence contended that the petitioner has no locus standi to file the writ petition questioning the process of examination as he has already participated in the examination. To fortify his stand, reliance has been placed on Madan Lal and Others Vrs. State of J & K and Others, (1995) 3 SCC 486, Dhananjay Malik Vrs. State of Uttaranchal, (2008) 4 SCC 171 and Ramesh Chandra Shah Vrs. Anil Joshi, (2013) 11 SCC 309, to contend that the petitioner has taken a calculated chance and realizing the result of the examination would not be palatable to him, he cannot at this stage turn around to question that the questions set in the Test Booklet was not in conformity with Rule 6(4) of the ODCS Rules.
7.1. By referring to Basavaiah Vs. Dr. H.L. Ramesh and Others, (2010) 8 SCC 372, Sri Bibhu Prasad Tripathy, learned counsel submitted that no mala fide being alleged against the examiner-OPSC nor the experts, it is imprudent for the petitioner to assail the acumen of the opinion of the Expert Committee comprising Retired W.P.(C) No.12065 of 2023 Page 18 of 48 Head of Department, Pharmacy and Senior Lecturer in Pharmacy of SCB Medical College and Hospital, Cuttack.
7.2. Reiterating the stance in the counter affidavit, he strenuously urged that inter-subject overlapping being not uncommon, the marks as allocated against each of the subjects covering entire syllabus and chapters having "by and large equal weightage" need not be entertained by showing indulgence.
7.3. It is also forcefully argued that this Court ceases to have jurisdiction to interfere with the process of examination which has been undertaken and conducted by the opposite party No.2-OPSC at this stage on the verge of publication of the results.
7.4. Winding up his arguments, the learned counsel for the OPSC raised objection that this Court may decline to sit in appeal against the opinion of the Expert Committee and the petitioner, having consciously participated in the examination, should not be allowed to question the examination process, which was conducted in accordance with the terms contained in "Method of Selection" vide Clause 6 of the Advertisement for the post of Drugs Inspector (Group-B).
W.P.(C) No.12065 of 2023 Page 19 of 48ANALYSIS WITH DISCUSSIONS:
8. This matter revolves in a narrow compass whether the opposite party No.2-OPSC, Examiner, can on its own deviate from the manner prescribed for "recruitment procedure for the post of Drugs Inspector" in Rule 6 of the ODCS Rules, 2020. In other words, in absence of any provision contained in the ODCS Rules to relax conditions stipulated in Rule 6, whether the OPSC could allocate marks in contravention thereof.
8.1. To comprehend real controversy, Rule 6 of the ODCS Rules is reproduced hereunder:
"Recruitment Procedure for the post of Drugs Inspector.--
(1) The post of Drugs Inspector in the service shall be filled up by way of direct recruitment through competitive examination to be conducted by the Commission and personality test besides additional marks due to higher qualification and experience as enumerated in Sub-rule (4).
(2) The competitive examination and personality test for recruitment to the post of Drugs Inspector shall be conducted by the Commission.
(3) The time, date and places of the examination and personality test shall be fixed by the Commission.
(4) The standard and subjects of examination for recruitment to the post of Drugs Inspector shall be as follows:W.P.(C) No.12065 of 2023 Page 20 of 48
a) The written examination shall be in the standard of Bachelor of Pharmacy/ Pharmaceutical Sciences or Doctor of Pharmacy (Pharm.D).
b) The written examination shall consist of 200 marks and shall comprise of multiple choice questions only. Each question shall carry 01 (one) mark and 0.25 marks shall be deducted for each wrong answer in the written examination. The duration of written examination shall be of 3 hours.
c) The subject of examination shall comprise of:
Sl. Subject Marks
No.
1 Pharmaceutical Chemistry and 25
Medicinal Chemistry
2 Pharmacology 25
3 Pharmaceutics 25
4 Pharmacognosy & Phytochemistry 25
5 Pharmaceutical Analysis 25
6 Pharmaceutical Biochemistry & 25
Pharmaceutical Microbiology
7 Human Anatomy & Physiology 25
8 Hospital Pharmacy, Clinical 25
Pharmacy and Forensic Pharmacy
Total = 200
d) The Syllabus for the written examination will
be as per syllabus approved by Pharmacy Council of India for Bachelor of Pharmacy or Pharmaceutical Sciences or Doctor of Pharmacy (Pharm.D) Course from time to time.
e) The candidate, who secure such minimum qualifying marks in the written test, as may W.P.(C) No.12065 of 2023 Page 21 of 48 be fixed by the Commission, shall be called to appear at the interview for a personality test and the personality test shall carry 20 marks:
Provided the number of such candidates to be called for the personality test belonging to each category, shall not exceed twice the total number of vacancies likely to be filled up in different services.
f) Candidate possessing higher qualification will be given total 04 (Four) marks as weightage and such weightage will be limited to only one higher qualification. For this purpose, higher qualification will mean:
i. Post graduate degree in Pharmacy/ Pharmaceutical Sciences (M.Pharm), or ii. Postgraduate degree in Medicine (M.D.) with specialization in Clinical Pharmacology or Microbiology, or iii. Doctor of Philosophy (Ph.D) in Pharm.D.
g) Weightage of 02 (two) extra marks shall be given to the candidates for each completed year of work experience in manufacturing/ Quality Control/Quality Assurance in any Allopathic drug/Homeopathic drug/Cosmetic or Medical Devices Manufacturing unit or Government Drug Testing Laboratory or any Drug/Cosmetic/Medical Devices Testing Laboratory Licensed under the Drugs & Cosmetics Act and Rules there under.W.P.(C) No.12065 of 2023 Page 22 of 48
h) To be eligible to this weightage the candidate must submit the experience certificate from the Central or State Licensing Authority or any person authorized by him to issue Licenses or from the head of the organization where he was working in the manufacturing or quality control/assurance division.
i) Weightage due to work experience will be for a maximum period of three years [i.e. maximum 06 (six) marks].
ILLUSTRATION:
Candidate-A-- Scored 130 marks in competitive examination, completed both M. Pharm & Ph.D. in Pharmacy, possess 4 years
9 months' work experience in a Drug manufacturing unit.
Candidate-B-- Scored 115 marks in competitive examination, possess Ph.D in Doctor of pharmacy (Pharm-D).
Sl. Subjects Candidate- Candidate-
No. A B
1 Competitive Secured Secured
Examination 130 marks 115 marks
out of 180 out of 180
2 Personality Test 15 marks 14 marks
out of 20 out of 20
3 Work 6 0
Experience
4 Higher 4 4
Qualification
5 Total Score 155 out of 133 out of
210 210
j) All certificates or testimonials or working
experience certificates submitted by the W.P.(C) No.12065 of 2023 Page 23 of 48 candidates shall be verified by the Drugs Controller at the time of joining into service.
k) At a later stage, if any of these certificates or testimonials or working experience certificates is found to be false or fabricated, the appointment shall be terminated by the Government without any reason and the candidate shall have no rights to claim such job.
(5) The vacancies for the post of Drugs Inspectors shall be determined by the Government in Health and Family Welfare Department.
(6) The vacancies as on 1st day of January each year shall be reported by the Government in Health & Family Welfare Department to the Commission by 31st of January of the same year.
(7) On receipt of intimation referred to in sub-rule (6), the Commission shall issue an advertisement in two leading local newspapers and one National level newspaper circulating in the State inviting applications for the competitive examination indicating the number of vacancies and the vacancies reserved for reserved categories and other details required for the competitive examination.
(8) The result of the recruitment shall be communicated by the Commission to the Government in Health and Family Welfare Department."
W.P.(C) No.12065 of 2023 Page 24 of 488.2. The opposite party No.2 has not disputed that the examination of eight subjects was conducted on 19.03.2023 and the advertisement was published indicating examination of 8 subjects with total marks "200". The counsel for the opposite party No.2 during course of hearing has placed heavy reliance on Report of the Expert Committee to contend that none of the questions having been shown to be beyond syllabus and all the questions printed in the Test Booklet being not beyond 8 subjects of examination, merely because each subject did not contain twenty-five (25) marks as stipulated in Rule 6(4) of the ODCS Rules, it is not proper for the petitioner to argue that the examination held on 19.03.2023 deserves to be quashed. This Court finds such argument of Sri Bibhu Prasad Tripathy, learned Advocate not only fallacious, but also jejune.
8.3. Rule 6(4) of the ODCS Rules, 2020 envisages that the written examination is required to be conducted covering syllabus of eight subjects. Each subject is to carry one (1) mark. The recruitment procedure prescribed under Rule 6 lays down condition(s) inter alia that "subject of examination shall comprise of" twenty-five (25) marks in each subject and total marks would, therefore, be 200.
8.4. Laying emphasis on the opinion of the Expert Committee, Sri Bibhu Prasad Tripathy, learned Advcoate for the opposite party No.2 contended that "inter-subject W.P.(C) No.12065 of 2023 Page 25 of 48 overlapping is not uncommon and strict subject-wise segregations will be misleading". It is, thus, quite clear that the questions set in Test Booklet were not in accordance with the requirement prescribed under Rule 6(4)(c) of the ODCS Rules.
8.5. At this juncture perusal of "ABSTRACT" appended to the Report of Expert Committee would depict that each subject has not been allocated with uniform twenty-five (25) marks.
8.6. It is well-nigh settled that an admission of fact in the written statement/counter need not be proved. The predominant characteristics of this type of evidence consist in it binding characters. Admissions are broadly classified into two categories:
(a) Judicial admissions; and
(b) Extra-judicial admissions.
Judicial admissions are formal admissions made by a party during the proceedings of the case. Extra-judicial admissions are informal admissions not appearing on the record of the case. The former are fully binding on the party that makes them. They constitute a waiver of proof. Section 58 of the Indian Evidence Act, 1872 spells out that "No fact need be proved in any proceeding which the parties thereto or their agents agree to admit W.P.(C) No.12065 of 2023 Page 26 of 48 at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings". Therefore, judicial admission normally relates to agreed statements of facts made between the parties to save time and expenses at a trial. The basic principle underlying Order 6, Rule 5 of the Code of Civil Procedure, 1908, is that every allegation of fact in the plaint must be taken as admitted unless denied or stated to be not admitted in the pleadings of the defendant. Hence, where there is no pleading of the defendant/opponent, there appears no denial on his part and, therefore, he is bound by all the allegations in the plaint/petition.
8.7. Held in M. Venkataramana Hebbar Vrs. M. Rajagopal Hebbar, (2007) 6 SCC 401, that "if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved." It is, thus, unambiguous that the opponent is required to deny or dispute the statements made in the petition categorically, as evasive denial would amount to an admission of the allegation made in the petition. See, Jaspal Kaur Cheema Vrs. Industrial Trade Links, (2017) 8 SCC 592.
W.P.(C) No.12065 of 2023 Page 27 of 488.8. Applying the said analogy to the present case, it is, thus, clear that specific plea of the petitioner in the writ petition that the questions set in the Test Booklet were not in consonance with the prescription under Rule 6(4) of the OCDS Rules, has been admitted and explanation proffered by the opposite party No.2 based on opinion of the Expert Committee that "inter-subject overlapping is not uncommon and strict subject-wise segregation will be misleading" is evasive one, which this Court cannot accept, moreso, nothing has been cited that any provision exists empowering the examiner to deviate or relax conditions stipulated in the "Recruitment Procedure for the post of Drugs Inspector" in Rule 6 of ODCS Rules, 2020. It is admitted by Sri Bibhu Prasad Tripathy, learned Advocate that no such power is vested or conferred on OPSC, the examiner under the ODCS Rules.
8.9. Therefore, the aforesaid analysis would lead to undoubted conclusion that the questions set in the Test Booklet given to the petitioner at the examination held on 19.03.2023 were not as per allocation of marks for each subject mentioned under the table at clause (c) of sub-rule (4) of Rule 6 of the ODCS Rules.
9. The ODCS Rules, 2020 has been framed "in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the rules, W.P.(C) No.12065 of 2023 Page 28 of 48 regulations, orders and instructions issued in this regard except as respects things done or omitted to be done before such supersession". It is evident on a cursory glance at the table comprising columns-- "serial No.", "subject" and "marks"-- vide clause (c) of sub-rule (4) of Rule 6 of ODCS Rules that questions in each of the subjects are to be of twenty-five (25) marks and each question does carry one (1) mark.
9.1. Significant it is to note that Rule 6(4)(c) of ODCS Rules begins with the expression "the subject of examination shall comprise of". The use of word "shall" contemplates mandatory requirement. It may be apt to refer to C. Bright Vrs. District Collector, (2020) 7 SCR 997, wherein it has been reiterated that, a well-settled rule of interpretation of the statutes is that the use of the word "shall" in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalid. It is not always correct to say that if the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid and that when a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of W.P.(C) No.12065 of 2023 Page 29 of 48 the statute. The principle of literal construction of the statute alone in all circumstances without examining the context and scheme of the statute may not serve the purpose of the statute. In S. Siba Rao Vrs. Nabin Mahakur, 2011 (I) ILR-CUT 946 (Ori) = 2011 (Supp.-II) OLR 910 (Ori) this Court has observed referring to State of U.P. Vrs. Babu Ram, AIR 1961 SC 751 that the use of word "shall" raises presumption that particular provision is imperative. The word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the context or intention otherwise demands. See, Sainik Motor Vrs. State of Rajasthan, AIR 1961 SC 1480. When the statute uses word "shall" prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. Refer, Govindlal Chagganlal Patel Vrs. Agriculture Produce Market Committee, AIR 1976 SC 263.
9.2. In view of the aforesaid interpretation of the word "shall"
makes it abundantly clear that the subject of examination with allocation of twenty-five marks in each subject is mandatory in nature.
9.3. It is settled that any recruitment process is to be followed and concluded in the light of the recruitment rule. It is settled proposition of law that every action of the State or its instrumentalities should not only be fair, legitimate and above board but also should be without W.P.(C) No.12065 of 2023 Page 30 of 48 any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where the statute confers a wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision- making process remains bad. Reference in this regard has been made in the case of State of Odisha Vrs. Mamata Mohanty, (2011) 3 SCC 436.
9.4. In Bedanga Talukdar Vrs. Saifudaullah Khan, (2011) 12 SCC 85, it is observed as follows:
"29. *** 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 W.P.(C) No.12065 of 2023 Page 31 of 48 power of relaxation is provided in the rules, it must still be mentioned in the 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.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
***
32. *** It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. ***"W.P.(C) No.12065 of 2023 Page 32 of 48
9.5. Aforesaid principle has also been reiterated in Ankita Thakur Vrs. The H.P. Staff Selection Commission, (2023) 16 SCR 813. The following is extracted from said Judgment:
"26. The above decision has been followed in Sanjay K. Dixit Vrs. State of U.P., (2019) 17 SCC 373. Thus, the law is settled that if the extant Rules provide for the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement. And when this power is exercised, there must be wide publicity of its exercise so that persons who are likely to benefit by exercise of such power may get opportunity to apply and compete."
9.6. It is contended by the opposite party No.2 through Sri Bibhu Prasad Tripathy, learned Advocate that in the advertisement the total marks of 200 being made known to public at large, the OPSC could conduct examination with little variation in the allocation of marks in each subject in view of the opinion of the Expert Committee that inter-subject overlapping is not uncommon. Such argument is only to be repelled. The ruling in the case of Union of India Vrs. K.P. Joseph, (1973) 1 SCC 194 is apt to be quoted hereunder:
"Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma Vrs. State of Rajasthan, AIR 1967 SC 1910, that although Government cannot supersede statutory rules by W.P.(C) No.12065 of 2023 Page 33 of 48 administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service."
9.7. In the instant case, scrutiny of the advertisement vide Annexure-4 does not reflect power being conferred on the OPSC-examiner to relax any of the conditions stipulated in Rule 6 of the ODCS Rules, 2020. In the advertisement total marks is found mentioned as "200", yet in absence of any extant Rule permitting OPSC to exercise power of relaxation/variation of conditions stipulated in Rule 6 of the ODCS Rules, the process of examination is not tenable in the eye of law.
10. Valiant attempt has been made by Sri Bibhu Prasad Tripathy, learned counsel by arguing in favour of sustenance of examination conducted by the OPSC, but lacked merit inasmuch as it is the petitioner examinee who after writing the examination only can and could know that the questions appearing in the Test Booklet were not containing twenty-five (25) marks in each subject. The learned counsel for the opposite party No.2 has pressed into service the following principle laid down in Madan Lal Vrs. State of J&K, (1995) 3 SCC 486, stated to have been reiterated in Dhananjay Malik Vrs. State of W.P.(C) No.12065 of 2023 Page 34 of 48 Uttaranchal, (2008) 4 SCC 171 and Ramesh Chandra Shah Vrs. Anil Joshi, (2013) 11 SCC 309:
"It is now well settled that if a candidate takes a calculated chance then only because the result of the interview is not palatable to him, he cannot turn around and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
10.1. Said principle has no application in the present fact-
situation for the simple reason that on getting the questions as set in the Test Booklet and after writing the examination when the examinee assessed his performance could ascertain that the same were not in conformity with the conditions laid down in the Rules.
10.2. It is also submitted by the learned counsel for the opposite party No.2 that as the Advertisement specified the total marks, the candidate-participant of the examination very-well knew the subjects and total marks. Since there is no allegation that the questions were out of syllabus, it is submitted by the counsel for the OPSC that there arises no cause of action for the petitioner to question veracity of the Test Booklet. On this count also the argument falls to ground for the conditions contained in the Advertisement cannot be at variance with the stipulation provided in the ODCS Rules which is framed in exercise of powers conferred under Article 309 of the Constitution of India.
W.P.(C) No.12065 of 2023 Page 35 of 4810.3. In this respect it may be apposite to say that executive instructions cannot override the statutory provisions. [Vide B.N. Nagrajan Vrs. State of Mysore, AIR 1966 SC 1942; Sant Ram Sharma Vrs. State of Rajasthan, AIR 1967 SC 1910; Union of India Vrs. Majji Jangammyya, AIR 1977 SC 757; B.N. Nagarajan Vrs. State of Karnataka, AIR 1979 SC 1676; P.D. Agrawal Vrs. State of U.P., (1987) 3 SCC 622; Beopar Sahayak (P) Ltd. Vrs. Vishwa Nath, AIR 1987 SC 2111; State of Maharashtra Vrs. Jagannath Achyut Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah Vrs. Union of India, AIR 1990 SC 166; Comptroller and Auditor General of India Vrs. Mohan Lal Malhotra, AIR.1991 SC 2288; State of Madhya Pradesh Vrs. G.S. Dall and Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights Vrs. Union of India, AIR 1998 SC 431; C. Rangaswamaeah Vrs.. Karnataka Lokayukta, AIR 1998 SC 96.] 10.4. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. (Vide State of U.P. Vrs. Babu Ram Upadhyaya, AIR 1961 SC W.P.(C) No.12065 of 2023 Page 36 of 48 751; State of Tamil Nadu Vrs. Hind Stone, AIR 1981 SC
711).
10.5. In Union of India Vrs. Somasundaram Vishwanath, (1988) Supp. 3 SCR 146, the Hon'ble Supreme Court of India observed that, "It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate Legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails."
10.6. Thus, bearing in mind the aforesaid salient view expressed by the Hon'ble Supreme Court of India, while dispelling the argument of the learned counsel for the opposite party No.2, this Court rejects the contention that in absence of allegation as to mala fides on the part of OPSC in conducting the examination based on dictum of Basavaiah Vrs. H.L. Ramesh, (2010) 8 SCC 372, the W.P.(C) No.12065 of 2023 Page 37 of 48 petitioner is not required to be given scope to question the propriety of the examination, wherein he made not only appearance, but also participated. As there is disparity between the condition stipulated in Rule 6(4) of the ODCS Rules, 2020 and Clause 6 of the Advertisement for "Recruitment to the post of Drugs Inspector (Group-B) under Health and Family Welfare Department", the former shall prevail, because the said Rules are framed "in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the rules, regulations, orders and instructions issued in this regard".
10.7. It is noticeable proposition as expounded in Union of India Vrs. Rakesh Kumar, AIR 2001 SC 1877; Swapan Kumar Pal Vrs. Samitabhar Chakraborty, AIR 2001 SC 2353; Khet Singh Vrs. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad Vrs. State of Maharashtra, (2003) 5 SCC 413; Delhi Development Authority Vrs. Joginder S. Monga, (2004) 2 SCC 297, that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.
10.8. In Ram Ganesh Tripathi Vrs. State of U.P., AIR 1997 SC 1446, the Hon'ble Supreme Court held that any executive instruction/order which runs counter to or is inconsistent with the statutory rules cannot be enforced, W.P.(C) No.12065 of 2023 Page 38 of 48 rather deserves to be quashed as having no force of law. The Hon'ble Supreme Court observed thus:
"They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents and similarly situated ad hoc appointees."
10.9. In Malik Mazhar Sultan Vrs. U.P. Public Service Commission, (2006) 9 SCC 507 it has been clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation.
10.10. It has been observed by the Hon'ble Supreme Court of India in the case of The Employees' State Insurance Corporation Vrs. Union of India, Civil Appeal No.152 of 2022, vide Judgment dated 20.01.2022, as follows:
"In Ashish Kumar Vrs. State of Uttar Pradesh, 4 (2018) 3 SCC 55 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held:
'27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being W.P.(C) No.12065 of 2023 Page 39 of 48 selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence. ***' ***"
10.11. Thus, in view of the above, it is evident that the Advertisement in question could not have been issued in contravention of the mandatory requirement contained in Rule 6(4)(c) of the Rules, framed under the proviso to Article 309 of the Constitution, and statutory rules cannot be set at naught by the whims of the question setter and/or the examiner-OPSC.
10.12. In this respect oft-quoted dictum may worth referred to, which is, when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four- corners thereof. Reference may be had to Bhavnagar University Vrs. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC
111. Conclusion and decision:
11. In the first place, it is to dispel interveners by reminding the cardinal principle as laid in Employees' State Insurance Corporation Vrs. Dr. Vinay Kumar, 2022 LiveLaw (SC) 514 that, W.P.(C) No.12065 of 2023 Page 40 of 48 "The cardinal principle we must bear in mind is that this is a case of direct recruitment. A candidate who has applied does not have a legal right to insist that the recruitment process set in motion be carried to its logical end. Even inclusion of a candidate in the select list may not clothe the candidate with such a right. This is, however, different, no doubt, from holding that the employer is free to act in an arbitrary manner."
12. This Court finds force in the submission of Sri Prasanta Kumar Mishra, learned counsel for the petitioner that it is upon the questions set in the Test Booklet is given for answering in the examination hall and after appearing and participating in the examination, while the candidate-participant self-assesses the performance, at that stage only it can be realised that the manner prescribed under the Rule has not been followed. At the stage of self-evaluation the petitioner could notice that each subject had not been set with twenty-five questions of one mark each as required under Rule 6(4) of the ODCS Rules, 2020. The petitioner having approached his Court within reasonable time, protection as interim measure has been granted and, thereby the results of the examination have not been published. Therefore, it is not a case where the petitioner having participating in the written examination, questioned the process of recruitment. Contrary contention made by the counsel for the OPSC is, hence, rejected.W.P.(C) No.12065 of 2023 Page 41 of 48
13. Sri Bibhu Prasad Tripathy, learned counsel for the OPSC also submitted that from the Advertisement under Annexure-4, it is very much apparent that the examination would comprise of eight subjects having 200 marks in toto. Being well aware of such position, the petitioner had applied for recruitment to the Post of Drugs Inspector (Group-B) under the Health and Family Welfare Department. As inter-subject overlapping is permissible in view of the fact that "Pharmaceutical Chemistry and Medicinal Chemistry", "Hospital & Clinical Pharmacy" and Pharmacology" are inter-related subjects; and "Pharmaceutical Analysis" is a part of "Pharmaceutical Chemistry", the opinion of Expert Committee cannot be appreciated by this Court sitting in writ jurisdiction to exercise power of judicial review.
There are no two views about exercise power judicial review to sit over the opinion of the Expert Committee. Nevertheless, this Court is not powerless to examine whether there is power vested in the examiner-OPSC or the question setter for relaxation of conditions stipulated in the ODCS Rules and if, at all, such power does exist, whether the same has been exercised in the manner prescribed. This Court, therefore, has accepted the fact stated by the Expert Committee as appearing in the "ABSTRACT" appended to the Report as placed by Sri Bibhu Prasad Tripathy, learned counsel for the OPSC. Scrutiny of such Report submitted by the Expert W.P.(C) No.12065 of 2023 Page 42 of 48 Committee transpires that each subject did not contain twenty-five marks as contemplated under Rule 6(4)(c) of the ODCS Rules, 2020.
14. A claim based on the doctrine of procedural legitimate expectation arises where a claimant expects the public authority to follow a particular procedure before taking a decision. The principles propounded in Sivanandan C T Vrs. High Court of Kerala, (2023) 11 SCR 674 = 2023 INSC 709, are referred to for the present purpose:
"55. The following are our conclusions in view of the above discussions:
(i) The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14;
(ii) An individual who claims a benefit or entitlement based on the doctrine of substantive legitimate expectation has to establish the following:
(i) the legitimacy of the expectation; and that
(ii) the denial of the legitimate expectation led to a violation of Article 14;
(iii) A public authority must objectively demonstrate by placing relevant material before the court that its decision was in the public interest to frustrate a claim of legitimate expectation;W.P.(C) No.12065 of 2023 Page 43 of 48
(iv) The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules.
(v) The High Court's decision to apply the minimum cut-
off marks for the viva voce frustrates the substantive legitimate expectation of the petitioners. The decision is arbitrary and violative of Article 14.
(vi) In terms of relief, we hold that it would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years. Candidates who have been selected nearly six years ago cannot be unseated. They were all qualified and have been serving the district judiciary of the state. Unseating them at this stage would be contrary to public interest. To induct the petitioners would be to bring in new candidates in preference to those who are holding judicial office for a length of time. To deprive the state and its citizens of the benefit of these experienced judicial officers at a senior position would not be in public interest."
14.1. It is not inapt to refer to the judgment of a Co-ordinate Bench of this Court rendered by a common Judgment dated 10.11.2022 rendered in Manas Ranjan Sahu Vrs. State of Odisha, W.P.(C) No.7138 of 2022 and Soumendra Mohanty Vrs. State of Odisha, W.P.(C) No.11120 of 2022. In the said judgment, it has been noticed as follows:
"17. Ms. Rath, learned counsel for the petitioner brought to the notice of this Court the discrepancies in the questions put up for the written examination more W.P.(C) No.12065 of 2023 Page 44 of 48 particularly as pleaded in Para-8 and 9 of the Writ petition in W.P.(C) No.7138 of 2022. The Petitioners specifically pointed out the discrepancies with regard to the questions set up in different Units in Paper-I and Paper-II. It is submitted that required number of 20 questions were not put up in terms of the syllabus prescribed for both Paper-I & II as well as prescribed under Unit-I to Unit-X.
18. It is submitted that in terms of Annexure-A to the advertisement question from each Unit carrying 20 marks were never put up and accordingly the petitioners were not only prejudiced but also the said examination was never conducted in accordance with the scheme of selection provided in the advertisement under Annexure-2.
19. Learned counsel for the petitioners submitted that since it is the settled law that the examination if any is to be conducted strictly in accordance with the terms indicated in a particular advertisement, the deviation made by the Opposite Party-Commission in not conducting the examination in accordance with Clause-6(h) of the advertisement is illegal and liable for interference of this Court"
This Court, having noticed that the questions set in the said examination were not in consonance with the manner prescribed in the advertisement, held as follows:
"48. Therefore, this Court taking into account the stand taken by the Petitioners in both the writ petitions and the stand taken by the Commission in the Counter Affidavit as well as in the Additional Affidavit finds that the written examination has not W.P.(C) No.12065 of 2023 Page 45 of 48 been conducted in accordance with the prescribed syllabus vide Annexure-A. But the Commission has shifted the onus on the experts. This Court further finds while requesting the experts to prepare the question papers in both Paper-I and II vide letter dated 23.06.2021 the syllabus prescribed vide Annexure-A to the advertisement was also provided to the said experts. But this Court finds that the question papers in Paper-I and Paper-II have not been prepared in accordance with the syllabus prescribed vide Annexure-A. This Court is of the view that the Commission has simply shifted the burden on the experts, while not disputing the fact that the questions were not set up in accordance with the syllabus and an evasive stand has been taken that equal distribution of mark is not prescribed any where categorically and the unit wise allotment of 20 marks is only indicative and not a conclusive one. The decisions relied on by learned Sr. Counsel appearing for the Commission as per the humble view of this Court is not applicable to the facts of the present case.
49. Therefore, taking into account the stand taken in the writ petition vis-à-vis the decisions relied on by the learned counsel for the Petitioners, this Court is of the view that the written examination conducted by the Commission on 06.03.2022 has not been conducted in accordance with the prescribed syllabus enclosed vide Annexure-A to the advertisement nor the required 20 no's of questions carrying 1 (one) mark each from each of the Units from Unit-(I) to (X) have been set-up.
50. Since the Commission has not conducted the selection in terms of the advertisement issued under W.P.(C) No.12065 of 2023 Page 46 of 48 Annexure-2, placing reliance on the decision cited by Ms. Rath, learned counsel for the Petitioner, this Court is inclined to held that the written examination conducted by the Commission on 06.03.2022 has not been conducted in accordance with the terms of the advertisement. While holding so, this Court is inclined to quash the said written test held on 06.03.2022 and consequential publication of the select list vide Annexure-A/2. While quashing the written examination as well as the select list published under Annexure-A/2, this Court directs the Commission to conduct a fresh written examination in accordance with the syllabus prescribed vide Annexure-A and relied on to be followed under Para-6(h) of the advertisement. This Court directs the Commission to conduct a fresh written examination and proceed thereafter strictly in terms of the advertisement issued under Annexure-2."
14.2. During the course of hearing of this matter, learned counsel for the OPSC made feeble attempt to distinguish aforesaid judgment on facts by submitting that in the said case there was a challenge that the Commission did not conduct the examination in accordance with the manner provided in the advertisement.
14.3. This Court is of the considered view that such a distinction sought to be drawn lacks merit on the anvil of legal position discussed in the foregoing paragraphs. It is, in this case, admitted by the opposite party No.2- OPSC that the marks allocated in the Test Booklets W.P.(C) No.12065 of 2023 Page 47 of 48 given to the petitioner-examinee are not in conformity with Rule 6(4)(c) of the ODCS Rules. Therefore, this Court is left with no other option, but to accede to the prayer of the petitioner.
14.4. Accordingly, the written examination as held on 19.03.2023 for "Recruitment to the Post of Drugs Inspector (Group-B) under Health and Family Welfare Department" with reference to the Test Booklet vide Annexure-6 is liable to be quashed and this Court does so.
14.5. The Opposite party No.2-OPSC is at liberty to conduct the written examination for the post of "Drugs Inspector (Group-B)" afresh in accordance with the manner prescribed in Rule 6 of the Odisha Drugs Control Service [Drugs Control Administration] (Methods of Recruitment and Conditions of Service) Rules, 2020.
15. With the aforesaid observation and direction, the writ petition succeeds and stands disposed of, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication High Location: HIGH COURT OFCourt of Orissa, ORISSA, CUTTACKCuttack Date: 10-Jul-2024 18:28:59 The 10th July, 2024// LAXMIKANT W.P.(C) No.12065 of 2023 Page 48 of 48