Orissa High Court
Pravati Nayak vs State Of Odisha And Another on 27 July, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 21022 OF 2016
In the matter of an application under Article 226 of the
Constitution of India.
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Pravati Nayak .... Petitioner
AFR -Versus-
State of Odisha and another .... Opp. Parties
For petitioner : M/s. Srinivas Mohanty,
S.S. Moharana, K. Patra, L. Das,
and S. Mohanty, Advocates.
For opp. parties : Mr. L. Samantray,
Addl. Government Advocate
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PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 27.07.2017
------------------------------------------------------------------------------- DR. B.R. SARANGI, J. The petitioner, having become unsuccessful in the selection made for the post of Lecturer in Physics in Non- Government Aided Colleges of Odisha, has knocked the doors of this Court for the following reliefs:
"The petitioner therefore, prays Your Lordships would graciously be pleased to admit this petition, call for the Model Answer Key 2 along with merit list of General Category up to 60 nos. of candidates and in SEBC up to 20 candidates.
AND be pleased to issue Rule Nisi calling upon the Opp.Parties as to why two sets of Advertisements against one No. is issued with preferential provision in the 2nd Advertisement.
AND be pleased to direct the Ops (Board)to cause revaluation of her written answer script and on her being successful, she may be appointed as Lecturers in Physics from the date her batch mates have been appointed;
AND pass any other and/or further order/orders as deemed fit and proper under the circumstances of the case.
And for this act of kindness the petitioner as in duty bound shall for every pray."
2. The case of the petitioner, in a nutshell, is that she is a Post Graduate in Physics and also acquires M. Phil. degree. Pursuant to an advertisement in anenxure-1 issued by the State Selection Board, Department of Higher Education in its website for the posts of Lecturers in Non-Government Aided Colleges of Odisha, petitioner submitted her application in annexure-2 in online, in the proforma made available in the website, for the post of Lecturer in Physics. As the application of the petitioner fulfilled the conditions stipulated in the advertisement and she was found eligible, an admit card in annexure-3 was issued to her and she appeared at the written examination on 15.04.2016 at 9.00 AM to 11.00 AM at BJB Autonomous College, Administrative Block, Bhubaneswar. On declaration of result of 3 the written examination, as she was found qualified, an intimation letter was issued in annexure-4 calling upon her to appear at State Selection Board, Unit-II, Ashok Nagar, (Behind Unit-II Girl's High School), Bhubaneswar for verification of documents and viva-voce test. For verification of documents, the date was fixed as 02.05.2016 at 10.00 AM, and for viva-voce test the date was fixed as 05.05.2016 at 10.00 AM. It was specifically mentioned in the intimation letter that for verification the petitioner was required to produce all original certificates, mark sheets, intimation letter and other relevant documents in support of her eligibility for the post, as specified in the advertisement, failing which she will be deprived of attending the interview. In compliance of the same, the petitioner furnished all the documents before the verifying authority on 02.05.2016 except the certificate of conduct of the College/University in which she last studied. But, however, she furnished an undertaking to produce the same on 05.05.2016 before the viva voce test was conducted by the authority. When the list containing the names of selected candidates for the post of Lecturer in Physics, pursuant to the advertisement in annexure- 1, was published by the State Selection Board in annexure-5, the 4 petitioner, having not found her name, approached this Court by filing this application.
3. Mr. S.Mohanty, learned counsel for the petitioner states that although on the date of verification of the original documents, i.e. on 02.05.2016 the petitioner could not produce her conduct certificate from the University in which she last studied, yet she obtained the same on 03.05.2016 and produced on 05.05.2016 on the date of viva voce test, as per her undertaking, which was accepted by the authority. But without considering the same, result was published disqualifying her. Such action of the authorities is not only illegal and arbitrary but also unreasonable.
4. Mr. L. Samantray, learned Addl. Government Advocate appearing for opposite parties no. 1 and 2, by referring to the counter affidavit, states that Clause-10 of the advertisement specifically required the petitioner to produce the certificates/documents in support of her eligibility for the post at the time of verification which was held on 02.05.2016. As a matter of fact, the petitioner did not produce the required documents, but on the basis of the undertaking furnished she was allowed to appear at the viva-voce test. Therefore, the 5 allegation, that the Selection Board has not maintained transparency, is absolutely misconceived one. It is further contended that the petitioner has approached this Court with a multi facet prayer. That is to say, she has sought for direction to cause revaluation of her written answer script and, on being successful, to appoint her as Lecturer in Physics from the date her batch mates have been appointed. It is also contended that even though the petitioner has annexed the select list pursuant to the selection conducted by the selection Board, the candidates so selected have not been made parties and, therefore, the writ petition suffers from non-joinder of parties.
5. Having heard learned counsel for the parties and after going through the records, since pleadings between the parties have been exchanged, with the consent of learned counsel for the parties, this matter is being disposed of finally at the stage of admission.
6. Indubitably, the petitioner was an applicant for the post of Lecturer in Physics, pursuant to the advertisement issued in annexure-1. She appeared at the written test, but when she was called upon to produce the original documents, she could not produce her conduct certificate issued by the 6 University, in which she last studied. Thereby, she furnished an undertaking to produce the same before the viva-voce test which was to be held on 05.05.2016. The conduct certificate, which was obtained on 03.05.2016, has been annexed as annexure-9. Whether the same was produced for verification before the viva- voce was conducted by the authority on 05.05.2016, no material has been adduced before this Court.
7. On the face of the above admitted facts, now it is to be seen how far the reliefs sought by the petitioner in the instant writ application are admissible. As has been quoted above, the petitioner has, first of all, sought from this Court a direction to the opposite parties to produce the model answer key along with merit list of General Category up to 60 nos. of candidates and SEBC up to 20 candidates. Since the petitioner has already annexed the merit list as annexure-5 to the writ petition, a direction for production of the same by the opposite parties is not called for. So far as production of model answer key is concerned, if such prayer of the petitioner is acceded to, it will amount to causing a fishing and roving inquiry, which is not permissible under law. So far as issuance of two sets of advertisements against one number with preferential provision 7 in the second advertisement is concerned, the petitioner, having participated in the process of selection pursuant to such advertisements and not come out successful, cannot turn around and state, that the reasons for issuance of such advertisement cannot sustain, and such a stand is absolutely misconceived one.
8. In Madan Lal v. State of Jammu Kashmir, AIR 1995 SC 1088, the apex Court held as follows:
"........If a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
9. On perusal of the pleadings in the writ petition, it would be seen that the petitioner has not alleged with regard to bias and mala fides against any authority. In absence of any such pleadings, this Court is not inclined to consider the same on the basis of the speculative and apprehensive submission 8 made by the leaned counsel for the petitioner. The petitioner has to make out a case of bias or mala fide in case such an allegation is made. As such, the person against whom such allegation is made is to be impleaded as a party. In absence of any such pleadings and impleation of party, the relief sought in second prayer, cannot be granted.
10. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana, AIR 1988 SC 2181, the Supreme Court has observed as under :-
" In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."9
In Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684, the apex Court observed as under:-
"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."
In view of the law discussed above, in absence of any pleadings as against the relief sought, no such relief can be extended to the petitioner.
11. So far as the direction for revaluation of written answer script is concerned, in absence of any specific provisions for the same, such a relief is not permissible to grant. The petitioner has not produced any material whatsoever or pleaded anywhere in the writ application that there is a provision for revaluation of answer script in case a candidate opts for the same. Therefore, at the instance of the petitioner, question of revaluation of her answer script does not arise at all. Consequentially, the prayer made that she should be appointed as Lecturer in Physics is also a misconceived one and cannot be granted to the petitioner. On perusal of the pleadings and reliefs sought in the writ application, it appears that the petitioner has not made out a case in her favour.
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12. Mr. S. Mohanty, learned counsel for the petitioner in course of hearing stated that selection so made pursuant to select list in Annexure-5, being illegal and arbitrary, is liable to be quashed. On perusal of the writ petition, it appears that the petitioner has not impleaded any of the selected candidates as party.
In Prabodh Verma v. State of Uttar Pradesh, AIR 1985 SC 167, the apex Court observed that since the person duly selected by the Commission has not been impleaded as a party, though he is a necessary party, no order adversely affecting such person can be passed behind his back. Similar view has also been taken by the apex Court in various judgments. Therefore, due to non-joinder of necessary party, the writ petition otherwise cannot sustain and the same is also liable to be dismissed.
13. In view of the discussions made in the foregoing paragraphs, the writ petition merits no consideration and is thus dismissed.
Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 27th July, 2017, Ajaya True copy Sr. Steno