Orissa High Court
A.F.R. Ram Sankar Mohanty vs Union Of India & Others ... Opposite ... on 6 September, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9539 of 2014
(Applications under Articles 226 and 227 of the Constitution of
India)
A.F.R. Ram Sankar Mohanty
... Petitioner
-versus-
Union of India & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Niranjan Lenka,
Advocate.
For Opposite Party
Nos.1 to 4
: Mr. Sanjib Swain,
Sr. Panel Counsel.
For Opposite Party
No.6 : A.G.A.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
W.P.(C) No. 9539 of 2014 Page 1 of 16
06.09.2024.
Sashikanta Mishra,J. The Petitioner has approached this Court with the following relief;
"Therefore, it is prayed that this Hon'ble Court be graciously pleased to admit the writ application, issue rule NISI in the nature of Writ of mandamus or any other writ/writs as deem fit and proper calling upon the opposite parties to show cause as to why the order dtd.22.4.2014 vide Annexure-7 shall not be quashed and the Opp. Parties particularly the Opp. Party No.3 to show cause as to why they shall not be directed to accept the joining report of the Petitioner to join as Jr. Technician at IIT, Bhubaneswar pursuant to the appointment order issued in his favour vide Annexure-4 by extending the joining period and why he shall not be allowed to discharge his duties as such."
2. The case of the Petitioner is that an advertisement was issued by Indian Institute of Technology, Bhubaneswar (Opposite Party No.2) (IIT) bearing No.Rectt/02/Non-Acad/2011-12 to fill up different posts including 13 posts of Junior Technicians. The Petitioner submitted his application on 20.11.2011 under Physically Handicapped category. He appeared in the written examination being called upon on 17.5.2013 and in the trade test and interview held on 15.11.2013. He was issued with an offer of appointment on 17.1.2014 asking him to join on or W.P.(C) No. 9539 of 2014 Page 2 of 16 before 17.3.2014. He was also asked to submit all relevant documents at the time of joining. On 14.3.2014, the Petitioner appeared before the Registrar and requested for grant of further time to submit his disability certificate. He was granted time till 24.3.2014. However, he submitted his joining report on 18.3.2014 enclosing a Disability Certificate on the same date. Since there was some discrepancy in his name and his father's name, the IIT authorities asked the C.D.M.O, Cuttack (Opposite Party No.6) to certify the genuineness of the certificate by letter dtd.20.3.2014. At this stage the Petitioner approached this Court in W.P.(C) No.6010/2014 wherein this Court issued notice by Special Messenger to the Opposite Parties by order dated 26.3.2014. On 09.5.2014, the Petitioner received the order dated 22.4.2014 cancelling/withdrawing the order of appointment issued in his favour on the ground that the disability certificate had been sent to the CDMO, Cuttack, for verification wherein it was found that the name of his father was mentioned as Pitabas Mohanty. Further, as W.P.(C) No. 9539 of 2014 Page 3 of 16 per advertisement, no post of Jr. Technician was reserved for P.H. category. Being thus aggrieved, the Petitioner has again approached this Court in the present Writ Petition.
3. The stand taken by the Opposite Parties is that in the advertisement no reservation was provided for the post of Junior Technician under P.H. category. However, out of inadvertence, the Petitioner's application was considered and he was called upon to attend trade test and interview even through his candidature should not have been considered. Moreover, the offer of appointment was also wrongly issued in his favour. The disability certificate produced by him was also found to be erroneous and he was also overaged for appointment being aged more than 35 years. According to the Opp. Parties, only one post of Junior Assistant was advertised under P.H. category. The Petitioner deliberately disclosed that he belongs to the P.H. category in his application without furnishing the disability certificate. His application was W.P.(C) No. 9539 of 2014 Page 4 of 16 wrongly considered and the selection committee recommended his appointment. He secured 15 marks in interview whereas the cut-off mark for general candidates was 20 and for P.H. candidates, it was 10.
4. Heard Mr. Niranjan Lenka, learned counsel for the Petitioner and Mr. Sanjib Swain, learned senior panel counsel for Union of India representing the IIT, Bhubaneswar.
5. Mr. Lenka would argue that having accepted the candidature of the Petitioner under P.H. category and having issued an offer of appointment in his favour, it is not open to the concerned authorities to subsequently turn around and go back on such offer. Referring to the note appended to the advertisement, Mr. Lenka would argue that the vacancies reserved for SC/ST/OBC (OH) have been indicated with the further stipulation that candidates belonging to reserved categories are encouraged to apply for different categories of posts. Therefore, according to Mr. Lenka, this shows that the reserved category candidates W.P.(C) No. 9539 of 2014 Page 5 of 16 including the candidates belonging to the Physically Handicapped category were eligible to apply. Mr. Lenka further submits that the plea that no post of Junior Technician was reserved for physically handicapped category is untenable being contrary to the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short '1995 Act'). Mr. Lenka also argues that even on merits, the ground cited to withdraw the offer of appointment namely, discrepancy in the name of the Petitioner and his father occurring in the disability certificate is factually incorrect in view of the subsequent clarification issued by the CDMO, Cuttack.
6. Per contra, Mr. Sanjib Swain would argue that the petitioner cannot claim estoppel as he was well aware of the fact that the advertisement had no provision for reservation of P.H. candidates against the post of Junior Technician. Secondly, an act of inadvertence committed by the institute cannot be utilized to its detriment particularly when the W.P.(C) No. 9539 of 2014 Page 6 of 16 Petitioner has not altered his position to his prejudice. According to Mr. Swain, fact remains that there being no reservation for P.H. candidates for the post of Junior Technician, the Petitioner cannot take advantage of the inadvertent mistake committed by the authorities more so when he is found to have secured much less than the cut-off marks for the general category.
7. It would be proper to first refer to the advertisement wherein the following note is given;
"N.B.-(i) Number of vacancies indicated above contains posts reserved for SC/ST/OBC(OH) as per GOI rules. Total number of vacancies may increase. Candidates belonging to reserved categories are encouraged to apply for different categories of posts given above.
(ii) One post is reserved for PH (OH) for Junior Assistant. Category Orthopedically Handicapped (OH)."
From a plain reading of the above stipulation it becomes crystal clear that the reservation has been confined to social categories and also special category like OH. But then, nothing is indicated as regards the special categories like Physically Handicapped W.P.(C) No. 9539 of 2014 Page 7 of 16 candidates for unreserved category. The Petitioner admittedly belongs to the unreserved category. Of the posts so advertised only one post was reserved for P.H. (OH) category for Junior Assistant with further stipulation-Orthopedically Handicapped. If Mr. Lenka's argument as referred above would be accepted, then the specific mention of reservation of P.H. category only for the post of Junior Assistant becomes redundant as everything would have been covered by the general note quoted hereinabove. This Court therefore, holds that in so far as the Junior Technician is concerned, no post was reserved for P.H. category candidates.
8. The ground that having accepted his candidature and offered him employment the authorities are estopped from going back on such offer shall now be considered.
The law relating to estoppel is well settled by several decisions of the Supreme Court as well this Court. It would be apposite to refer to the decision of W.P.(C) No. 9539 of 2014 Page 8 of 16 the Supreme Court rendered in the case of Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai;1, wherein the principles for application of the law of estoppel was stated in the following wards;
"23. To bring the case within the scope of estoppel as defined in S. 115 of the Evidence Act: (1) there must be a representation by a person or his authorized agent to another in any form-a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice: (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) Only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee."
9. Reference may also be had to a Full Bench decision of this Court in the case of Miss Reeta v. 1 AIR 1982 SC 121 W.P.(C) No. 9539 of 2014 Page 9 of 16 Berhampur University and another;2, wherein this Court held as follows;
"In support of the legal position that if the concerned person has knowledge about the true state of affairs, principle of promissory estoppel would not apply, our attention is invited to a number of Bench decisions of this Court, the first of which is Suresh Chandra Choudhury v. Berhampur University, AIR 1987 Ori 38. In that case, the Bench principally relied on the decision of the Supreme Court in Chhaganlal Keshvlal Mehta v. Patel Narandas Haribhai, AIR 1962 SC 121, in which one of the requirements of estoppel was said to be that the person concerned must show that he was not aware of the true state of things or that he had no means to know the same. In Suresh Chandra, the applicability of the doctrine of estoppel was rejected because the petitioner could have known on the basis of the mark- sheet sup- plied to him relying on which admission to higher class was taken that he had failed in the examination in question. Therefore, as the petitioner had means of knowing that he had not succeeded in examination, and had indeed failed, it was held that the University was not estopped from declaring subsequently that the petitioner had failed. The ratio of this decision has been applied in Gajandra Patra v. Utkal University, 68 (1989) CLT 694; Bisweswar Behera v. Utkal University, 1989 NOC 29 (Orissa), Reetanjali Pati v. Board of Secondary Education, AIR 1990 Orissa 90, and Prabhat Kishor Sahu v. Sambalpur University, AIR 1992 Orissa 83.
10. Further in an earlier decision i.e. in the case of - Suresh Chandra Choudhury v. The Berhampur University and others;3 this Court held as follows;
2 AIR 1993 Ori 27 W.P.(C) No. 9539 of 2014 Page 10 of 16 " xxx xxx xxx xxx xxx xxx
The question whether the principle of estoppel applies to a particular case depends on the facts of that case. It may be that on similar facts in two cases, in one, in the absence of any material to show that the petitioner claiming the benefit of estoppel had knowledge or means of knowledge to know the real state of affairs, the principle will apply, whereas in the other case, where materials to this effect are present, the doctrine of estoppel will not apply."
11. Thus, from the principles laid down in the above cited decisions it becomes clear that the application of the rule of estoppel depends upon several factors primary among them being that the person claiming estoppel must not have been aware of the relevant facts thereby acting solely on the promise made by the promissor. In the instant case the advertisement, copy of which is enclosed as Annexure-1, very clearly shows that the number of vacancies being 56 contains the posts reserved for SC/ST/OBC (OH) as per GOI rules and further one post being reserved for P.H.(OH) for Junior Assistant. It is nobody's case that the Petitioner belongs to either SC or ST or OBC category but belongs to general category. Therefore, being a general category 3 AIR 1987 Ori 38 W.P.(C) No. 9539 of 2014 Page 11 of 16 candidate the Petitioner, ordinarily cannot claim reservation under the P.H. category for the post of Junior Technician. A reading of the advertisement shows that total number of 56 posts were advertised including 13 posts of Junior Technicians. Mr. Lenka has cited a judgment of the Supreme Court rendered in the case of Union of India and another vrs. National Federation of the Blind and others reported in (2013) 10 SCC 772 to buttress his argument that 3% of the total number of vacancies in the cadre strength are required to be reserved for P.H. candidates as per the Act of 1995. In other words, Mr. Lenka would have the Court to hold that notwithstanding non-mention in the advertisement, reservation for P.H. candidates exists by operation of law. This Court is not impressed with the argument for the reason that the Petitioner should have challenged the advertisement in the first place if such was his stand. Instead of challenging the advertisement he submitted his application as a P.H. category candidate fully knowing that the W.P.(C) No. 9539 of 2014 Page 12 of 16 advertisement does not provide for any reservation for P.H. category candidates for the post of Junior Technician. Therefore, he cannot in any manner be said to have been misled by the advertisement so as to claim estoppel against the authorities.
12. Another important principle for application of estoppel discussed above is that the person concerned must have altered his position to his prejudice because of the act committed by the authorities. In the instant case, the Petitioner heavily relies upon the offer of engagement issued in his favour to submit that having once issued the same, the authorities are bound by it. This argument can also be considered only to be rejected. What was issued by the authorities was only an offer of appointment and not an order of appointment as such, as would be evident from a bare reading of letter dated 17.1.2014, copy enclosed as Annexure-5). It is well settled that an offer can be withdrawn by the offerer at any time before it is accepted. In the instant case an offer was made on W.P.(C) No. 9539 of 2014 Page 13 of 16 17.1.2014 and the Petitioner was granted time till 24.3.2014 to join. However, before the offer crystallized into a full-fledged order of appointment, the same was withdrawn/cancelled by letter dtd.22.4.2014. Even otherwise, this Court having found that the Petitioner had no legal right to claim appointment as a P.H. candidate for the purpose of Junior Technician, withdrawal of the offer of appointment issued to him inadvertently cannot bind the authorities for all times to come as was held by the Full Bench of this Court in the case of Miss Reeta v. Berhampur University and another (supra). The mistake was rectified shortly after it was committed. To amplify, the offer of appointment was mistakenly issued on 17.1.2014 and subsequently on scrutiny the mistake having come to light, was rectified by withdrawing the offer on 22.4.2014. This Court finds nothing wrong committed by the authorities. It goes without saying that there can be no estoppel against law. It therefore follows that even a wrong appointment without proper verification cannot confer any right on the appointee and that an W.P.(C) No. 9539 of 2014 Page 14 of 16 error or mistake cannot be overlooked by applying the principle of estoppel. What then to speak a mere offer of appointment!
13. As regards the question of alteration of the position of the Petitioner, it has been argued on his behalf that he was working in a private institution namely, Trident Academy and Technology and had resigned there from only to join pursuant to the offer of appointment. A copy purporting to be the relieve order issued by the said Academy in his favour is enclosed to the connected Writ Petition (W.P.(C) No.6010 of 2014) as Annexure-5. However, the Petitioner has not given any other details of such employment either in the form of the order of appointment or any other evidence. In any case, this Court having found that the Petitioner has no legal right to stake a claim of appointment as a P.H. category candidate which he was fully aware of from the beginning, no benefit would accrue to him on such ground.
W.P.(C) No. 9539 of 2014 Page 15 of 16
14. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court finds that the Petitioner was fully aware that there is no reservation for P.H. category for the post of Junior Technician and yet had applied for such post under such category knowingly without challenging the advertisement. Only because his candidature was considered by mistake cannot bind the institute to definitely provide him with employment going against its own advertisement. This Court therefore, holds that no illegality was committed by the authorities in withdrawing the offer of appointment issued in favour of the Petitioner so as to persuade this Court to interfere in the matter.
15. In the result, the Writ Petition being devoid of merit, is dismissed. There shall be no order as to costs.
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Sashikanta Mishra,
Ashok Kumar Behera Judge
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack Date: 13-Sep-2024 09:24:06 W.P.(C) No. 9539 of 2014 Page 16 of 16