Orissa High Court
Sidheswari Mohanty vs State Of Orissa & Ors. ..... Opp. Parties on 27 February, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 21082 OF 2017
AND
W.P(C) NO. 17872 OF 2017
In the matter of applications under Articles 226 and 227
of the Constitution of India.
---------------
AFR In W.P(C) No.21082 of 2017 Sidheswari Mohanty ..... Petitioner
-Versus-
State of Orissa & Ors. ..... Opp. Parties For Petitioner : Mr. B. Routray, Sr. Advocate along with M/s. S. Das, S.K. Samal, S.P. Nath, S.D. Routray and B.R. Pattanayak, Advocates For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate [O.Ps.1-4] M/s. P. Prusty and G. Rout, Advocates [O.P.No.5] In W.P(C) No.17872 of 2017 Girija Kanta Rout ..... Petitioner
-Versus-
Orissa Administrative
Tribunal, Cuttack Bench,
Cuttack & Ors. ..... Opp. Parties
For Petitioner : M/s. S.K. Dash, S. Das, A. Sahoo
and P. Das, Advocates
For Opp. Parties : Mr. A.K. Mishra,
// 2 //
Addl. Govt. Advocate
[O.Ps.1-6]
Mr. J. Pattanaik, Sr. Advocate
along with M/s. P. Prusty and G.
Rout, Advocates
[O.P.No.7]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of Hearing: 20.02.2023 :: Date of Judgment: 27.02.2023 DR. B.R. SARANGI,J. W.P.(C) No.21082 of 2017 has been filed by Sidheswari Mohanty seeking to quash the common order dated 02.05.2017 passed in O.A. No.2028(C) of 2012 & batch under Annexure-9, by which the Orissa Administrative Tribunal, Cuttack Bench, Cuttack has quashed the selection of the petitioner for Live Stock Inspector training, so far as Jajpur district is concerned, pursuant to advertisement dated 16.01.2004 published in Odia daily newspaper "The Samaj" under Annexure-1, and further to issue direction to the opposite parties to allow the petitioner to continue in the post of Live Stock Inspector under the Jajpur district from the date of her // 3 // appointment as per Annexure-3 extending all service benefits in accordance with law.
Similarly, W.P.(C) No.17872 of 2017 has also been filed by Girija Kanta Rout seeking to quash the common order dated 02.05.2017 passed in O.A. No.2046(C) of 2012 & batch under Annexure-1, by which the Orissa Administrative Tribunal, Cuttack Bench, Cuttack has quashed the selection of the petitioner for Live Stock Inspector training and further to issue direction or pass any other order as deemed fit.
2. Since both the writ petitions arise out of the common order dated 02.05.2017 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in a batch of Original Applications with similar cause of action seeking to quash the said common order, they were heard together and are disposed of vide this common judgment.
3. Shorn off unnecessary details, the factual matrix, which led to filing of the above noted two cases, // 4 // is that the Director, Animal Husbandry & Veterinary Service, Odisha, Cuttack issued an advertisement in Odia daily newspaper "The Samaj" dated 16.1.2004 to fill up some posts of Live Stock Inspector for Jajpur District, pursuant to which the petitioners applied for the same with other intending candidates including one Jatindra Kumar Samal, who has been arrayed as opposite party no.5 in W.P.(C) No.21082 of 2017 and opposite party no.7 in W.P.(C) No.17872 of 2017. On being successful in the selection process, which was strictly made on the basis of mark secured in the academic career of the candidates, the petitioners were called for an interview and finally on the basis of marks and performance, the petitioners along with other 10 (ten) candidates were provisionally selected. The Chief District Veterinary Officer, Jajpur, vide order no.1044 dated 17.10.2006, invited objection from the general public within seven days from the date of order. As no objection was received, the petitioners were issued with appointment orders indicating about their selection as Live Stock Inspector, pursuant to which they joined and are till date // 5 // continuing in the said post maintaining service record. During the process of selection, Jatindra Kumar Samal- opposite party no.5 in W.P.(C) No.21082 of 2017 and opposite party no.7 in W.P.(C) No.17872 of 2017, whose candidature was rejected for non-submission of relevant certificates, in order to illegally stop the process of selection filed O.A No.1227 (C) of 2004 and at his instance two other Original Applications bearing O.A. Nos.1269 (C) of 2004 and O.A No1500 (C) of 2004 were filed, which were disposed of vide orders dated 14.07.2004 and 25.08.2004 with a direction to the selection committee to examine the allegation of malpractice and removal of the certificates of some unsuccessful candidates before scrutiny to eliminate some prospective candidates and to pass appropriate order by disposing of the representation. Pursuant to such orders of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack a detailed enquiry was conducted by the Collector-cum-Chairman, Selection Committee, Jajpur but the allegation of removal of certificates from the applications of 197 applicants, out // 6 // of total 597, whose candidatures were rejected during the process of scrutiny, was not established. As a result, the process of selection continued and vide order no.364/Vet. dated 17.08.2004, order no.1204/Vet. dated 11.11.2004 and order no.1332/Vet. dated 17.12.2004 passed in compliance of the order of the Tribunal, the Enquiry Officer rejected such allegation of malpractice or removal of the certificates from the application forms with the finding that no such required documents were submitted by such unsuccessful candidates. Thereafter only, the final order of appointment was issued in favour of the petitioners and other successful candidates. 2.1 Pursuant to such order of appointment issued by the Collector, Jajpur, the petitioners and other 10 (ten) candidates joined and continued in their service as Live Stock Inspector at different places. Again, said Jatindra Kumar Samal, being failed in his attempt, to harass the petitioners and other successful candidates and aggrieved by the detailed order no.364/Vet. dated 17.08.2004 to create hindrance on the smooth // 7 // functioning of the petitioners and other appointees, filed O.A. No 1860 (C) of 2006 and, thereafter, at his instance, one unsuccessful candidate, namely, Santosh Kumar Sethi filed O.A No. 1989 (C) of 2006 and one Manjusa Manjari Prusty filed O.A No. 121 (C) of 2009 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack with a prayer to quash the entire selection of the petitioners and other 10 (ten) candidates with false allegation that such selection was made through malpractice by removing their educational certificates from the application forms. But finally the Tribunal, vide order dated 21.04.2011, dismissed the aforesaid three Original Applications filed by the unsuccessful candidates with a clear finding that "no clinching evidence regarding malpractice is noticed to merit interference by the Tribunal".
2.2 During subsistence of adjudication of the aforesaid three Original Applications, one of which was filed by Jatindra Kumar Samal basing on the anonymous letter as per order of the Director, Veterinary and Animal // 8 // Husbandry, i.e., vide letter no.2093 dated 24.01.2007, an administrative enquiry was conducted by the Joint Director, AH&VS, Orissa, Cuttack in the office of the Chief District Veterinary Officer, Jajpur to decide the allegation on irregular appointment of the petitioners along with 10 (ten) other candidates wherein all the 197 candidates, out of total 597 candidates, whose candidatures were rejected in the process of scrutiny for non-submission of different documents, were noticed individually and of them although 129 candidates attended the enquiry but 97 candidates filed their written statement/affidavit supporting such allegation of irregularity. However, after conclusion of the enquiry, the Enquiring Officer submitted his enquiry report dated 31.01.2008 rejecting the allegation of the unsuccessful candidates, but recommended for a vigilance investigation if desired by the authority. 2.3 After dismissal of the aforesaid O.As, Jatindra Kumar Samal filed W.P.(C) No.14703 of 2011 challenging the correctness of the order passed by the Tribunal.
// 9 // When the said matter was pending, the Director, Veterinary and Animal Husbandry, Orissa directed for re- enquiry of the said allegation by the Additional Secretary and in this process, the newly appointed Enquiry Officer, without issuing notice to any of the successful or unsuccessful candidates or even recording the statement of any of the parties or even examining any member of the then Selection Committee or collecting any prima facie materials regarding the alleged suspicious involvement of one Khirod Chandra Jena, a Senior Assistant attached to the office of the CDVO, Jajpur, on his own assessment and on official discussion with the present staff of the office of the Collector, Jajpur and the office of CDVO, Jajpur, who were not in existence at the time of such selection, and on verification of the copies and documents already available as per the previous enquiry, in a most illegal, mechanical and mala fide manner came to a finding that the selection was not made in a clean and fair manner and certificates of some candidates were deliberately removed to facilitate less percentage candidates and accordingly submitted // 10 // enquiry report on 21.04.2012 with a recommendation to cancel the selection of all the successful candidates, to initiate departmental proceedings against the Member of the Selection Committee and by not extending the periodical Annual Contractual Appointment Order issued in favour of 12 successful candidates, including the petitioners, fresh selection be conducted basing on the advertisement.
2.4. On receipt of the enquiry report dated 21.04.2012, opposite party no.1 issued termination order dated 20.06.2012 which was communicated to the petitioners vide office order dated 27.06.2012 by the CDVO, Jajpur. Aggrieved by the termination order, the petitioner in W.P.(C) No.21082 of 2017 approached the Tribunal by filing O.A. No.2028(C) of 2012 and likewise the petitioner in W.P.(C) No.17872 of 2017 filed O.A. No.2046(C) of 2012 and being unsuccessful to obtain any interim order of stay operation of the order of termination, the petitioner in W.P.(C) No.21082 of 2017 approached this Court by filing W.P.(C) No.11870 of 2012 // 11 // and this Court, vide order dated 16.07.2012, disposed of the said writ petition targeting disposal of O.A. No.2028(C) of 2012 and directing the opposite party- authority to allow the petitioner in W.P.(C) No.21082 of 2017 to continue in the post till disposal of the O.A. 2.5. W.P.(C) No.14703 of 2011, preferred by Jatindra Kumar Samal, was also disposed of by this Court, vide order dated 07.05.2013, with the observation that in view of the order of termination passed by the State Government no order requires to be passed by this Court and in this process finally, after hearing of the two O.As. filed by the petitioners along with the other O.As filed by other 10 (ten) successful candidates, including O.A. No.3736(C)/2011 filed by Jatindra Kumar Samal, the Tribunal, vide common order dated 02.05.2017, dismissed all the O.As., including O.A. No.2028(C)/2012 and O.A. No.194(C)/2013 filed by the petitioner in W.P.(C) No.21082 of 2017, and quashed the entire selection list of Live Stock Inspector of Jajpur District pursuant to advertisement dated 16.01.2004 with a // 12 // further direction to the opposite party-authorities to prepare a fresh selection list by giving preference to the candidates by constituting a fresh selection board with an enquiry as to whether documents annexed with the application forms of any of the candidates were removed or not and to conclude the entire selection process within a period of four months and till that period not to disturb the status of the candidates. Hence, these writ petitions.
3. Mr. B. Routray, learned Senior Counsel appearing for the petitioner in W.P.(C) No.21082 of 2017 contended that the Tribunal has lost sight of the fact that no allegation or any material was found against any of the selected candidates, which can prove beyond reasonable doubt that they have committed any kind of malpractice or fraud, and the second enquiry report was submitted on 21.04.2012 by the Addl. Secretary to Govt., Fisheries & ARD Department and in the meantime the petitioner has already worked in the post of Livestock Inspector for more than sixteen years. Therefore, terminating the present petitioner without even issuing // 13 // any show-cause or affording any opportunity of hearing is in gross violation of the principles of natural justice. It is further contended that the Tribunal has also not considered the fact that when the Tribunal had already in earlier Original Application concluded that there is no clinching evidence regarding the alleged malpractice, therefore it was not permissible for the Addl. Secretary to Govt., Fisheries & ARD Department to initiate another enquiry after a period of six years, unsettling the settled position. It is also further contended that the Tribunal, while passing the impugned order, has made out a third case by holding that Project Director, DRDA, Jajpur cannot be inducted as a party member of the Selection Board and the same is in violation of the Rules, but the Tribunal ignored the fact that in terms of the Amendment Rules, vide Notification No. 590 dated 07.01.2000, a nominee of the Director of Veterinary and Animal Husbandry Service belonging to Director of Veterinary Service Group-A must be a member and, therefore, in terms of the Amendment Rules, the Project Director, DRDA acted as a nominee on behalf of the Director, // 14 // Veterinary and Animal Husbandry service. To substantiate his contentions, he has relied upon the judgment of the apex Court in Vikas Pratap Singh v. State of Chattisgarh, (2013) 14 SCC 494 and Anmol Kumar Tiwari v. State of Jharkhand, (2021) 5 SCC
424.
4. Mr. S.K. Dash, learned counsel appearing for the petitioner in W.P.(C) No.17872 of 2017 reiterated the contentions raised by Mr. B. Routray, learned Senior Counsel appearing for the petitioner in W.P.(C) No.21082 of 2017. He further contended that there was direct recruitment to the post of Live Stock Inspector, pursuant to advertisement issued. But, on the basis of the report of the Additional Secretary to the Government in Fisheries and Animal Resources Development Department, their services were terminated, after each of the selected candidates had put six to seven years of service, vide orders dated 20.06.2012, 23.06.2012 and 27.06.2012. While the said report was under challenge in O.A. No.187 of 2013, by way of separate application, a // 15 // joint application i.e. O.A. No.2046 of 2012 was preferred against the order of termination, with the leave of the Tribunal under Sub-section (4) of Section-4 of the Administrative Tribunal Act, 1985. It is further contended that the order of termination of all the 12 number of recruits could be passed in violation of the principles of natural justice and, as such, no notice of show-cause was issued to the petitioners before the harshest decision was taken to terminate them from service. Though specific averment on that score was made in paragraph-6.18 of O.A. No.2046(C)/2012 was made, the Tribunal did not at all take the same into account. Therefore, the orders of termination have been passed in violation of Article-311(1) of the Constitution of India and the principles of natural justice. Considering such action of the authority as illegal, the Tribunal directed not to implement the same till publication of a revised select list, on the ground that it is not known as to whether the names of all the selected candidates would appear in the revised list or not, while quashing // 16 // the selection for the post of Live Stock Inspectors training pursuant to advertisement dated 16.01.2004. 4.1 It is further contended that the selection was challenged at different levels and on different occasions, on the ground that in order to show favour to their own candidates, candidatures of some of the applicants were rejected by removing documents from their applications. Earlier, in O.A. No.1860(C) of 2006 (preferred by opposite party no.7 in W.P.(C) No.17872 of 2017, the applicant in O.A. No.3736 of 2011), the Tribunal held in paragraph- 19 that as no clinching evidence regarding malpractice is noticed to merit interference by the Tribunal, the claim of the applicant cannot be allowed at this stage and disposed of the said O.As. as not allowed. With regard to the merit of the report of the Additional Secretary to the Government in Fisheries and Animal Resources Development Department, at the bottom of paragraph-12 of the impugned judgment, the Tribunal held that the report reveals that selection has not been made fairly which means either the candidates have played fraud in // 17 // securing the appointment or the selection board has not made selection in accordance with the rule to favour their own candidates. It is further contended that the ultimate conclusion in paragraph-14 of the impugned judgment reveals that the Tribunal concluded that nothing has been shown to indicate that any of the selection candidates played fraud or misrepresented in any manner, so as to secure an appointment. But the Tribunal held that the entire selection is vitiated since the selection committee was not constituted in accordance with the rules and consequentially dismissed the O.A. Therefore, it is contended that the order so passed by the Tribunal cannot be sustained in the eye of law and the same has to be quashed.
4.2 In support of his contentions, Mr. Dash, learned counsel appearing for the petitioner in W.P.(C) No.17872 of 2017 relied upon the judgment of the apex Court in the case of Union of India (UOI) and Ors. v. Somasundaram Viswanath and Ors., AIR 1988 SC 2255.
// 18 //
5. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties, substantiating the order of termination, contended that even if there is no fraudulent act either on the part of the petitioners or on the part of the selection committee, but contended that the selection having been conducted de hors the rules by constituting a committee, the same cannot be sustained in the eye of law and, thereby, justified the order passed by the Tribunal. Therefore, the writ petitions should be dismissed.
6. Mr. Jagannath Patnaik, learned Senior Advocate appearing along with Mr. P. Prusty, learned counsel appearing for Jatindra Kumar Samal, who has been arrayed as opposite party no.5 in W.P.(C) No.21082 of 2017 and opposite party no.7 in W.P.(C) No.17872 of 2017, contended that selection to the post of Live Stock Inspector had not been made in accordance with statutory rules and more importantly the selection board was not constituted in accordance with the rules, for // 19 // which the entire selection is vitiated and, as such, is liable to be quashed and direction should be issued to the State-opposite parties to prepare a fresh selection list following statutory rules giving preference to the candidates as provided under Rule 6(d), after constituting a fresh selection board as per Rule-8(1), and proceed to select the candidates for Live Stock Inspector training and such action to be taken within a period of four months. It is further contended that any action taken by the authority in violation of statutory provisions is constitutionally illegal and the same cannot be claimed to have any sanctity in law. It is further contended that the decision of the selection committee can be interfered with on limited grounds when there is illegality or material irregularity in constitution of committee or its procedure vitiates selection and proved mala fide affecting the selection. It is further contended that without following due process of law or rules for appointment did not confer any right on appointees that the Court cannot direct their absorption or regularization or re-engage and making permanent. To substantiate his // 20 // contentions, he has relied upon the judgments of the apex Court in Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors., (2006) 4 SCC 1; S. S. Sodhi v. State of Punjab, (1990) 2 SCC 694; Biswa Ranjan Sahoo v. Sushanata Kumar Dinda (Civil Appeal No.9158 of 1996 arising out of SLP(C) No.13684 of 1996 (CC-2066 of 1996) disposed of on 08.05.1996); and Union of India v. O. Chakradhar, AIR 2002 SC 1119.
7. This Court heard Mr. B. Routray, learned Senior Advocate appearing for the petitioner in W.P.(C) No.21082 of 2017; Mr. S.K. Dash, learned counsel appearing for the petitioner in W.P.(C) NO.17872 of 2017; Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties in both the writ petitions and Mr. J. Patnaik, learned Senior Advocate appearing along with Mr. P. Prusty, learned counsel appearing for Jatindra Kumar Samal, who has been arrayed as opposite party no.5 in W.P.(C) No.21082 of 2017 and opposite party no.7 in W.P.(C) No.17872 of 2017, in hybrid mode. Pleadings have been exchanged // 21 // between the parties and with the consent of learned counsel for the parties, both the writ petitions are being disposed of finally at the stage of admission.
8. On careful appraisal of the materials available on record, including the orders impugned herein, this Court finds that pursuant to an advertisement published on 16.01.2004 in Odia daily newspaper "The Samaj" for filling up of the posts of Live Stock Inspector for Jajpur District, the petitioners submitted their applications. The selection for the posts of Live Stock Inspector training is conducted under the Odisha Non-Gazette Veterinary Technical Service (Recruitment of Condition of Service) Rules, 1983 (for short "Rules, 1983"). As per Rule-5, direct appointment to the posts in the cadre of Live Stock Inspector shall be made by the Director in order of merit out of the list of candidates successfully completed the training. Rule-6 provides the eligibility of the candidates to undergo Live Stock Inspectors training. As per Rule- 6(d), which was amended vide notification dated 19.09.1997, the candidates must have passed // 22 // Intermediate in Science or +2 Science or Higher Secondary (Science) or such other equivalent examination or +2 vocational courses in the field of Animal Husbandry/Dairy/Poultry/Meat/Animal Production from recognized educational Institution /Board/Council/University. Vide notification dated 7.1.2000, Rule-7 was amended reconstituting the selection board, where the Collector of the concerned district has been made as the Chairman, a nominee of the Director of Veterinary and Animal Husbandry Services belonging to C.V.S. Grade-A as the Member, the District Welfare Officer is another Member and the CDVO of the concerned district as Member Convenor. Again the Rules were amended vide notification dated 30.05.2011 substituting Rule-6(d) with the following provision:-
"4 In the (i) said rules, In rule-6, first provision to clause (d) shall be substituted by the following proviso, namely:-
"Provided that candidates who have passed +2 vocational Course in the field of Animal Husbandry/Diary/Poultry/Meat/animal Production from a recognized educational Institution /Board/Council/University shall be given first preference."
// 23 // Provided further that Gomitras having +2 Science qualification with satisfactory performance in Artificial Insemination (A.I) activities for three years shall be given second preference; and
(ii) the word 'further' used in the existing 2nd proviso shall be substituted by the word "also"
9. The advertisement was issued prescribing educational qualification as follows:-
The candidates who have passed the +2 vocational courses shall be given first at the time of selection. Then the candidates who have passed +2 Sciences with TRYSEM training and +2 sciences with layman Inseminator training shall be considered. After the above categories of candidates are exhausted, then the +2 science candidates shall be selected in order of their merit, selection shall be made only on the basis of career marks obtained in HSC examination,+2 science vocational courses in dairy, Poultry, Meat and AH/Animal Production and then in +2 Science courses, TRYSEM/Layman Inseminator trained candidates who do not possess +2 science qualification will not be taken for consideration.
10. In the above backdrop, the following issues are formulated for an effective adjudication of the case:-
(i) Whether the selection to the posts of Live Stock Inspector has been made in accordance with rules governing the field?
(ii) Whether any malpractice or irregularity was committed in the selection process // 24 // as per the enquiry report of the Addl.
Secretary to the Government in Fisheries and ARD Department?
(iii) Any other relief the petitioners are entitled to.
11. Issue No.(i) On perusal of records and on scrutiny of the counter affidavit filed by the State, it appears that as per the amendment to the Rules, 1983, vide Notification No.590 dated 7.1.2000, the Chief District Veterinary Officer (SDVO) of the concerned district is the appointing authority and the selection board shall be constituted comprising of (a) the Collector of the concerned district as Chairman; (b) a nominee of the Director of Animal husbandry Veterinary Service belonging to Director of Veterinary service Group-A as the Member; (c) District Welfare Officer as another Member; and (d) the CDVO of the concerned district as Member Convener. But it appears from the selection file that the selection committee was comprised of the following members:-
(1) Collector, Jajpur;
(2) PD, DRDA, Jajpur;
(3) District Welfare Officer;
// 25 // (4) Deputy Director, Animal Husbandry Odisha;
and (5) CDVO, Jajpur.
The induction of PD, DRDA, Jajpur, as a Member of the selection Board is de hors the rules. Though subsequently an affidavit was filed stating by virtue of an executive instruction, PD, DRDA, Jajpur has been made as a Member of the selection committee, but that ipso facto cannot change the rules, which have been framed under Article 309 of the Constitution of India without making amendment thereof. As such, the rules have not made any provision for induction of any of the members.
12. In S. S. Sodhi (supra), the apex Court held that any order or action done by authority in violation of statutory provision is constitutionally illegal and this cannot be claimed any sanctity in law. Statutory authority cannot ignore statutory provisions rather they required strict adherence. If statute provides a thing to be done in a particular manner and no other manner and following other course is not permissible.
// 26 //
13. In Dr. Krushna Chandra Sahu v. State of Orissa, AIR 1996 SC 352, the apex Court held that it is basically function of rule making authority to provide basis of selection. Selection committee has no inherent jurisdiction to lay down the norms for selection nor can such power assured by implication. Selection Committee/Board have no jurisdiction to lay down any standard or basis of selection as it would amount to lay down any standard or basis of selection as it would amount to legislating a rule of selection.
14. In Umadevi (3), mentioned supra, the apex Court held that without following due process of law or rules for appointment did not confer any right on appointees that the Court cannot direct their absorption or regularization or re-engage and making permanent unless appointment in terms of relevant rules after completion amongst qualified persons, the same would not confer any right on appointee.
15. In B.S. Vadera v. Union of India, AIR 1969 SC 118, the Constitution Bench of the apex Court held // 27 // that the proviso to Article 309 clearly lays down that any rules so made shall have effect subject to the provisions of any such Act. The clear and unambiguous expressions used in the Constitution must be given their full and unrestricted meaning, unless hedged-in by any limitations. The rules, which have to be subject to the provisions of the Constitution, shall have effect subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act under Article 309, the rules framed under the proviso will have effect subject to that Act; but in the absence of any Act, of the appropriate Legislature, on the matter, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively, and, retrospectively. In other words, the rules, unless they can be impeached on grounds such as breach of Part-III, or any other Constitutional provision, must be enforced, if made by the appropriate authority. Therefore, it is construed that the Rules framed under the proviso to Article 309 of the Constitution of India is legislative in character. The same view has been taken by the apex // 28 // Court consistently in subsequent judgments in the case of K. Nagaraj & Ors. Etc. Etc v. State Of Andhra Pradesh & Anr., AIR 1985 SC 551, Bhakta Rame Gowda and Ors. v. State of Karnataka and Anr., AIR 1997 SC 1038, and in the case of Raj Kumar v. Shakti Raj, AIR 1997 SC 2110.
16. The apex Court also held in the case of Union of India v. Madras Telephone SC & ST Social Welfare Association, (2009) 9 SCC 71 that the controversy between the parties centers round a question as to how the selection list has to be drawn up for the purpose of promotion to the post of Assistant Engineer from the post of Junior Engineer in Tele-communication Circles. It may be stated that prior to 1966, the Junior Engineers were being designated as Engineering Supervisors Telecom/Wireless Supervisors Telecom. Before the Telegraph Engineering Service Class II Recruitment Rules, 1966 framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India came into force, the promotion from // 29 // the post of erstwhile Engineering Supervisor Telecom to the post of Assistant Engineer was being made in accordance with the instructions contained in paragraph 206 of the Post and Telegraph Manual Volume IV. The said instructions were obviously the executive instructions, which governed the field in the absence of statutory rules. Thereby, the administrative instructions contrary to the statutory provision is liable to be struck down. The same view has been taken by the apex Court in Ratan Kumar Tandon & Ors v. State Of Uttar Pradesh, AIR 1996 SC 2710; Sreenivasa Reddy and Ors. v. Govt. of A.P. and Ors., AIR 1995 SC 586, C.L. Verma v. State Of M.P. and Anr., AIR 1990 SC 463.
17. In Nelson Motis v. Union of India and Anr., AIR 1992 SC 1981 the apex Court held that the meaning of an enactment is plain and effect must be given to such meaning irrespective of consequences. Similar view has also been taken in the case of State of Maharashtra and Ors. v. Nanded Parbhani Z.L.B.M.V., Operator Sangh, 2000 (2) SCC 69.
// 30 //
18. In Somasundaram Viswanath (supra), the apex Court had taken into consideration as to whether by reason of absence of one of the members of the Departmental Promotion Committee (DPC) at a meeting convened for the purpose of making recommendation regarding the promotion of officers to higher post in service under the Government of India, the recommendation made by the DPC at the meeting would become invalid. While answering the question, it was held by the apex Court that the proceedings of the DPC at its meeting held on 07.08.1986 are not invalid for the above reason. But the ratio of the said case has no application to the present context, as the said case is dealt with the recommendation of the DPC, whereas the case at hand is dealt with recruitment where a selection committee in accordance with the rules was to be constituted. In absence of the proper committee under the rules any selection made cannot be sustained in the eye of law.
// 31 //
19. In view of aforementioned settled position of law laid down by the apex Court, since the selection of the petitioners have been done de hors the rules, compliance of the principles of natural justice is not mandatory. Thereby, the selection made by the committee is de hors the rules. Issue no.(i) is answered accordingly.
20. Issue no.(ii) In view of the allegation of malpractice and irregularity in the matter of selection to the posts of Live Stock Inspector, an enquiry was conducted by the Addl. Secretary to the Government in Fisheries & ARD Department. It is candidly admitted that out of total 597 applications, 197 were rejected and it is alleged that relevant documents were removed from those applications in order to make way or to favour/ accommodate the candidates of their choice. It appears from the report that selection was made in violation of the recruitment rules, inasmuch as preference was not given to the candidates as per rules basing on their // 32 // qualification. Allegation was also made that selection was done by showing favoritism to one Swarna Prava Jena, who is the daughter of one Khirod Chandra Jena working as U.D Clerk in the office of the CDVO, Jajpur. Therefore, the allegation of mala fide was raised, but fact remains on such ground her selection cannot be negative to the selection process, even though her father was involved in the process of selection and had got an understanding in the selection of his daughter. The enquiry report submitted by the Addl. Secretary to Government in Fisheries and ARD Department justifies the allegation that the selection was not made fairly.
20.1 In view of the provisions contained in Rule-6
(d), first preference is to be given to candidates with +2 vocational course, who have passed +2 vocational course in the field of Animal Husbandry/Veterinary/Poultry/ Meat/Animal Production from a recognized educational institution/Board/Council/University and Gomitra having +2 Science qualification with satisfactory performance in artificial TRYSEM activities for three // 33 // years shall be given second preference. It appears from the report of the Addl. Secretary that out of 197 applications which were rejected, 12 candidates had passed +2 vocational courses. On the other hand, four candidates have been selected who had only +2 Science qualification. It also appears that the marks obtained in HSC and +2 Science have also been taken into consideration, but the statutory rules do not provide for taking into consideration the marks secured in any examination other than as provided in Rule-6(d). Thereby, the procedure adopted for selection of candidates is in violation of the statutory rules. It is well settled in law that any selection made de hors the rules is illegal. So far as fraud is concerned, nothing has been placed on record to substantiate the same that any of the candidates, who have been selected, had played fraud or misrepresented in any manner, so as to secure an appointment, but it is made clear that the selection which has been made is not in accordance with the statutory rules and, more so, the selection committee so constituted was not in accordance with the rules.
// 34 // Therefore, the entire selection is vitiated and is liable to be quashed.
20.2 In Shrisht Dhawan v. Shaw Bros, AIR 1992 SC 1555, the apex Court held that fraud avoids all judicial acts, ecclesiastical or temporal. It is further held that fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. The ratio decided by the apex Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons, who have frauded or misrepresented themselves. In such circumstances, the Court should not perpetuate the fraud by entertaining petitions on their behalf.
20.3 In Union of India v. M. Bhaskaran, AIR 1996 SC 686, the apex Court relying upon the earlier judgment in Vizianagram Social Welfare Residential School Society v. M. Treipura Sundari Devi, 1990 SC (L&S) 520, observed (M. Bhaskaran case SCC 104) "if by committing fraud any employment is obtained, the same // 35 // cannot be permitted to be countenanced by a Court of law as the employment secured by fraud renders it voidable at the opinion of the employer". 20.4 Since this Court has already given a finding that no fraud has been played, therefore, the ratio decided by the apex Court in Shrisht Dhawan and M. Bhaskaran (supra) cannot have any application to the present case. But fact remains, the selection and appointment has been made in gross violation of the rules. Therefore, if any appointment has been made in violation of the rules, the entire selection is vitiated. Issue no.(ii) is answered accordingly.
21. Issue No.(iii).
The case of Vikas Pratap Singh (supra), relates to the recruitment process for the posts of Subedars, Platoon Commanders and Sub-Inspectors, where the examination was conducted and evaluation was made and in the process of evaluation, illegalities were found to the extent that eight questions and model answers of another set of questions found incorrect.
// 36 // Consequently, re-evaluation was made and a revised select list was published. Then question was raised whether action of the authority is arbitrary or not. While answering the same, the apex Court held that rules provided for deletion of incorrect question and awarding of marks thereof on pro rata basis. Therefore, marks of eight objective type incorrect questions awarded on pro rata basis while model answers of another eight questions were re-evaluated on the basis of correct model answers and, thereby, held that no illegality can be said to have crept in if irregularities in evaluation are corrected by re-evaluation and undeserving select candidates identified and replaced with deserving candidates. Therefore, no prejudice was caused by re- evaluation to the candidates selected in revised select list. Thereby, the apex Court held that the error committed by the authority in the matter of evaluation of the answer scripts could not be attributed to the candidates as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation // 37 // of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from the Supreme Court irrespective of their length of service. Thereby, held that the candidates, who have successfully undergone training and are efficiently serving the State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the candidates and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the candidates, who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give them any unfair advantage nor cause undue prejudice to the candidates selected qua the revised merit list and thereby, directed the State to appoint the petitioners therein in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.
// 38 //
22. In Anmol Kumar Tiwari (supra), the apex Court held that Reinstatement/Back Wages/Arrear- Reinstatement-Parity-Direction to reinstate petitioners whose services were terminated because of errors on selection process finding that though they were beneficiaries of irregular select list, but petitioners were not responsible therefor and were appointed after completion of training and had worked for some time
23. In Biswa Ranjan Sahoo (supra), the apex Court held that enormity of malpractices in the selection process regarding appointment of Chargemen 'B' Grade in Mechanical and Electrical Division in the Railway, no notice is required to be issued to the persons affected and they need not be heard. The Tribunal was right in not issuing notice to the persons, who are said to have been selected and given appointment. The procedure adopted in the process of selection is in flagrant breach of the rules offending Articles 14 & 16 of the Constitution.
// 39 //
24. In O. Chakradhar (supra), the apex Court held that recruitment was made by the Railway Recruitment Board. Enquiry was held by CBI in the matter of selection. Widespread irregularities were found in the entire selection process and hence the entire selection was cancelled and the services of the selectees were terminated. The report of the CBI shows that whole selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer sheets while in the custody of Chairman in holding typing test, in interview and in the end while preparing final result. In such circumstances, it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of // 40 // misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is, could such selection be acted upon in the matter of public employment? It was not possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection. Termination of services of selectees could not therefore be faulted on ground of want of individual show cause notice.
25. Thereby, applying the above principles to the present case, if a rule framed under proviso to Article 309 is clear in its language, on plain reading of the same if interpretation is given, then any action taken de hors the rules has to be struck down. As a consequence thereof, since the selection committee had been constituted contrary to the rules, any selection made by // 41 // it cannot be sustained in the eye of law. Any subsequent executive instructions issued cannot supplement or supplant the provisions of the rules, which are purely statutory in nature, unless the same is incorporated by way of amendment to the rules itself. Therefore, the constitution of the selection committee relying on the executive instructions and any selection made by such committee cannot be sustained being de hors the rules framed by the authority, which is statutory in nature. As a consequence thereof, the selection of the petitioners being de hors the rules governing the field, the same cannot be sustained. As a result of which, the conclusion arrived at by the Tribunal in the order impugned is well justified, which does not require any interference by this Court at this stage.
26. In view of facts and law, as discussed above, since the selection to the post of Live Stock Inspector, pursuant to advertisement dated 16.01.2004, was made de hors the rules governing the field, the same is liable to be quashed and the Tribunal has rightly done so.
// 42 // Therefore, while upholding the impugned orders of the Tribunal, this Court directs the opposite party- authorities to prepare a fresh selection list on the basis of applications submitted, pursuant to the advertisement dated 16.01.2004, in accordance with statutory rules giving preference to the candidates as per Rule-6(d) of the Rules, 1983, after constituting a Selection Board, as per Rule-8(1) of the Rules, 1983. As such, the entire action shall be taken within a period of four months from the date of receipt of this judgment. While carrying out the aforementioned directions, the opposite party-authorities shall ensure that the candidates, who had been selected and whose names would appear in the revised select list, the impugned orders of termination shall not be implemented against them till then and shall be given effect to only in respect of candidates whose names do not find place in the list, and all the selected candidates will continue till then and their appointment shall be treated to be on ad hoc basis. However, the candidates whose names were appearing in the original selection list will get service continuity as well as other financial // 43 // benefits and the newly recruited candidates as per the revised selection list will only get notional benefit from the date of initial appointment like other selected candidates.
27. With the above observations and directions, both the writ petitions are disposed of. However, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 27th February, 2023, Alok