Orissa High Court
Dr. Archana Kanungo vs State Of Odisha & Ors. .... Opposite ... on 13 March, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7280 of 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Dr. Archana Kanungo .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : In Person
For Opp. Parties : Mr. M.K. Balabantaray, AGA
(Opp. Party Nos. 1, 2 & 4)
Mr. P.K. Mohanty, Sr. Advocate
along with
Ms. K.T. Mudali, Advocate
(Opp. Party No. 3)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 21.02.2024 and Date of Judgment: 13.03.2024
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Biraja Prasanna Satapathy, J.
Petitioner has filed the present writ petition inter alia with the following prayer:-
"It is, therefore, prayed that the Hon'ble Court be graciously pleased to allow the following prayer(s):-
// 2 //
(i) The Hon'ble Court be pleased to admit & allow the writ petition,
(ii) The Hon'ble Court be pleased to quash the impugned order dtd.20.12.2022 under Annexure-12,
(iii) The Hon'ble Court be pleased to direct the Opp. Parties for selecting/appointing the petitioner in the post of Asst. Professor of Sociology against the quota meant for Woman so also sportsperson in view of the G.A. & P.G. Department Resolutions under Annexure-13 & 14 in the matter of recruitment pursuant to advertisement No. 08/2020-
21, dtd.08.02.2021 keeping in view of her academic so also sports background with all consequential service benefits with in a time bound period by further declaring the actions of the opp. Party no. 1 & 3 as illegal, unconstitutional and erroneous one for the interest of justice.
(iv) The Hon'ble Court be pleased to pass any other Writ(S), Directions(s), Order(s) as this Hon'ble Court may be deemed fit and proper; And for this act of kindness, the petitioner shall as in duty bound ever pray."
3. It is the case of the Petitioner that pursuant to the advertisement issued by Odisha Public Service Commission - Opp. Party No. 3 (in short "Commission" ) vide Advertisement No. 08 of 2020-21 under Annexure-1, Petitioner made her application for the post of Asst. Professor in the discipline 'Sociology'. It is contended that as against the discipline Sociology out of the 15 posts so advertised, 5 posts were reserved for Women candidate. The breakup of the vacancy in Sociology so indicated in the advertisement reads as follows:-
"Sociology - ST-2 SC-2 SEBC-2 Unreserved-9 (5W) Total-15 (5W) Page 2 of 17 // 3 // 3.1. Petitioner contended that as provided in the advertisement under Annexure-1, the method of selection so prescribed under Para-6 reads as follows:-
"The appointments and conditions of service are to be guided by the provisions laid down under the Statutes as applicable to the State Public Universities.
There shall be shortlisting of candidates for each subject as per UGC guideline. The Commission has decided that five times the no of vacancies shall be shortlisted for interview when the no of vacancies is more than two. For subjects where there are only one or two vacancies, ten candidates shall be shortlisted for interview.
The academic score as specified in Appendix II (Table 3A) for universities of UGC Regulation, 2018 shall be considered for shortlisting of candidates for interview and on selection shall be based only on performance in interview.
The Commission shall be competent to determine the manner of conduct of its proceedings and to take all decisions required for selection of Assistant Professors to the Universities consistent with the provisions of the Act and Regulations prescribed in this behalf by the University Grants Commission.
Commission shall prepare a list of candidates in order of merit on the basis of performance in the interview which shall be equal to the number of advertised vacancies:
The list recommended by the Commission shall remain valid for a period of one year from the date of recommendation by the Commission."
3.2. It is contended that Petitioner out of all the candidates who had made their application for the post of Asst. Professor in the discipline Sociology, was called for physical verification of original documents to determine her eligibility and suitability for recruitment to the post in question vide notice dtd.07.02.2022 under Annexure-6. After such verification of the documents, Petitioner's name was shortlisted and included in the list of candidates eligible to face the interview vide notice dtd.16.04.2022 under Annexure-7. In terms of the notice issued on 16.04.2022 under Annexure-7, Petitioner faced Page 3 of 17 // 4 // the interview also. But when her name was not recommended by the Commission while recommending the names of selected candidates vide Notice dt.23.05.2023, she approached this Court challenging such action of the Commission in W.P.(C) No. 17348 of 2022.
3.3. This Court vide order dtd.16.09.2022 disposed of the writ petition by permitting the Petitioner to approach the Department for redressal of her grievances. Pursuant to the said order Petitioner made a grievance before Opp. Party No. 1 on 26.09.2022 under Annexure-9. In the meantime considering the prayer made by the Petitioner in Review Petition No. 272 of 2022 so filed seeking review of order dtd.16.09.2022, this Court vide order dtd.27.10.2022 under Annexure-10 further observed that the representation of the Petitioner so submitted in terms of order dtd.16.09.2022 shall be disposed of by the authorities taking into account the provisions contained under the Odisha Civil Services (Reservation of vacancies for Women in Public Services) Rules, 1994 (in short 1994 Rules).
3.4. It is contended that without proper appreciation of the Petitioner's claim as made in Annexure-9 and the order passed by this Court in Review on 27.10.2022, the claim of the Petitioner was rejected vide the impugned order dtd.20.12.2022 under Annexure-12. It is contended that only on the ground that Petitioner since could not secure the cut-off mark in the interview and was not recommended by the Commission, Opp. Party No. 1 held that no Page 4 of 17 // 5 // relief can be extended as prayed for. It was also indicated in the order that the provisions of reservation as laid down under 1994 rules has been followed in the selection process.
3.5. While assailing the order under Annexure-12, Dr. Kanungo contended that while taking up the selection process in terms of Annexure-1, the Commission never followed the resolution issued by the Govt. in the General Administration Department on 11.12.2014 under Annexure-13, where it was held that reservation of vacancies for Sportsman in Group-A (JB) services shall be made. It is also contended that the guideline issued by the Govt. in the G.A. Department on 19.10.2021 under Annexure-14 prescribing the principle to be followed on vertical and horizontal reservation during filling up of various State Civil Services and posts were also not followed by the Commission.
3.6. It is contended that as provided in the advertisement issued under Annexure-1, Petitioner's API score being quite high, she was shortlisted and called for interview vide notice issued under Annexure-7. But on the ground that the Petitioner could not secure the cut-off mark in the interview and accordingly she was not recommended by the Commission, is not sustainable, as no such cut-off mark was fixed by the Commission while holding the interview. Not only that since no reservation was provided for Sports Person, Petitioner was also deprived to get the benefit of such reservation. Not only Page 5 of 17 // 6 // that on the face of the order passed by this Court on 26.09.2022 and subsequent order passed on 27.10.2022, the provisions of 1994 Rules was also not followed while rejecting Petitioner's claim vide the impugned order dt.20.12.2022 under Annexure-12.
3.7. It is also contended that as against the discipline Sociology, out of the 15 vacant posts so advertised, 9 posts were reserved for UR candidates and out of those 9 posts, 5 posts were reserved for UR (Women) candidates. But the Commission illegally recommended Women candidates belonging to reserved category as against UR (Women) vacancies. It is accordingly contended that since the Commission did not follow the method of selection so prescribed under Para 6 of the advertisement and the UGC Regulation, 2018, the non- recommendation of the name of the Petitioner for her appointment as against UR (Women) vacancy in the discipline Sociology is not sustainable in the eye of law. It is also contended that since no cut-off mark was fixed in the interview, on the ground that Petitioner could not secure the cut-off mark and accordingly was not recommended is not sustainable in the eye of law. Opp. Party No. 1 while passing the impugned order did not take into account the said illegalities and irregularities committed by the Commission. 3.8. Making all such submissions, Dr. Kanungo contended that the impugned order passed by the Govt.-Opp. Party No. 1 on 20.12.2022 under Annexure- 12 requires interference of this Court and direction be issued to the Page 6 of 17 // 7 // Commission to recommend her name as against the three (3) vacancies which are available, as out of the 15 posts so advertised, only 12 candidates have been recommended vide notice dt.23.05.2022 under Annexure-A/3 and further direction to Opp. Party No. 1 to provide her with appointment.
4. Mr. P.K. Mohanty, learned Sr. Counsel appearing for the Commission on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Commission. It is contended that in terms of the guideline prescribed in Para 6 of the advertisement, taking into account the academic score secured by the Petitioner, she was shortlisted for the purpose of interview and was called to attend the interview vide notice issued on 16.04.2022 under Annexure-7. In the notice issued under Annexure-7 it was indicated that Pedagogy skill is part of the interview and the candidates have to come prepared to present a topic of their choice within 8 to 10 minutes before the Interview Board and the Board shall be provided by the Commission for the purpose.
4.1. It is contended that since in the interview Petitioner only secured 15 marks out of 100 marks and the last UR (Women) candidate so selected and recommended vide notice dtd.23.05.2022 has secured 51 marks, no illegality or irregularity has been committed by the Commission in not recommending the name of the present Petitioner as against UR (Women) vacancy. It is accordingly contended that since the Petitioner could not secure the required Page 7 of 17 // 8 // mark in the interview and the last candidate selected as against UR (Women) vacancy has secured 51 marks, Petitioner having secured only 15 marks, her case was rightly not recommended by the Commission. It is also contended that in the advertisement issued under Annexure-1, there was no provision of reservation for Sports category candidates and Petitioner after participating in the selection process cannot take a stand that no such reservation was provided in the advertisement. Similar plea taken by the Petitioner in the earlier writ petition in W.P.(C) No. 17348 of 2022 was also not acceded to by this Court while disposing the matter. It is contended that once the Petitioner participated in the selection process without raising any objection with regard to non- extension of reservation to Sportsperson, after becoming unsuccessful, Petitioner cannot challenge the same. Learned Sr. Counsel in support of his submission relied on the decision of the Hon'ble Apex court in the case of Madras Institute of Development Studies & Anr. Vs. K. Sivasubramaniyan & Ors. ((2016) 1 SCC 454) and the order passed by this Court in the case of Kunilata Dutta Vs. State of Odisha & Ors. (2010 (Supp. -II) OLR - 437). 4.2. Hon'ble Apex Court in Para 14 to 18 of the Judgment in the case of Madras Institute has held as follows:-
"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.Page 8 of 17
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15. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal case [Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425] where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9) '9. ... It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'
16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as Page 9 of 17 // 10 // a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that 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 the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] 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."
17. In Manish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 :
(2011) 1 SCC (L&S) 256] , this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129] , recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents." Page 10 of 17
// 11 // 4.3. This Court in Para 12 of the Judgment in the case of Kunilata Dutta has held as follows:-
"12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Utteranchal and others, (2008) 4 SCC 171-2009 AIR SCW 3265, the Apex Court held that when the petitioner took a Chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estoppel and precluded the questioning the said selection process."
5. To the stand taken by the Commission, Petitioner made further submission basing on the stand taken in the rejoinder affidavit. It is contended that since taking into account the API score of the Petitioner, she was shortlisted and called for interview, on the ground that the Petitioner could not secure the cut- off score, she could not have been deprived from being recommended by the Commission. It is contended that the Commission randomly selected 12 candidates without taking into account the API score of such candidates. Since the Petitioner has secured the highest API score, she should have been recommended and appointed as against the post of Asst. Professor, Sociology bereft of her performance in the interview. It is also contended that while conducting the interview, the Commission never followed the regulation issued by the UGC in the year 2018 and no cut-off mark was ever fixed. Page 11 of 17
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6. Considering the stand taken in the writ petition as well as in the counter affidavit, this Court passed the following order on 29.01.2024:-
"2. Heard learned counsel appearing for the Opposite Parties.
3. Petitioner contended that though in the advertisement there was no indication with regard to fixation of any cut-off mark to be secured by a candidates in the interview, but by taking a plea that Petitioner did not secure the cut-off mark so fixed in the interview, her name was not recommended by the Odisha Public Service Commission while recommending the names of eligible candidate as against the post of Asst. Professor in the discipline of Sociology.
4. It is also contended that though as against UR vacancies, five posts were reserved for UR (Women), but the Commission did not recommend five UR (Women) candidates, while recommending the names of eligible candidates.
4.1. Learned Addl. Government Advocate for the State as well as learned counsel for the Commission are directed to file an affidavit as to whether any cut-off mark was fixed prior to conducting the interview and whether five UR (Women) candidates were recommended in terms of the advertisement issued under Annexure-1. Such an affidavit be filed before the next date positively.
5. As requested, list this matter on 9th February, 2024."
7. In terms of the order passed on 29.01.2024 the Commission filed an additional counter affidavit on 09.02.2024. Basing on the stand taken in the additional counter affidavit, learned Sr. Counsel appearing for the Commission contended that before conduct of the interview, the Commission decided that for General and SEBC category candidates, the minimum base mark in interview will be at 50% and at 45% for SC & ST category. Out of the total 15 vacancies so advertised against the discipline Sociology, the Commission recommended 12 candidates, which includes 5 Women Page 12 of 17 // 13 // candidates. The breakup of the 12 candidates who are recommended is as follows:
UR-09 (05-W) SEBC-01 SC-01 ST-01 7.1. The Commission made the recommendation of the 12 candidates vide notice dtd.23.05.2022 under Annexure-A/2. It is contended that Petitioner only secured 15 marks out of 100 marks in the interview, whereas the last UR (Women) candidate so recommended had secured 51 marks in the interview.
The position of the Petitioner in the merit list of such candidates, who were called for interview stands at Sl. No. 59. With regard to the stand taken by the Commission that there are three (3) available vacancies which were not recommended, it is contended that those three (3) vacancies are against SEBC, SC & ST category. Since the Petitioner belongs to UR (Women) category, her claim cannot be recommended as against the vacancies, which are meant for reserved category candidates. It is also contended that even if admitting the stand of the Petitioner that no cut-off mark was fixed, but taking into account her performance in the interview, she was not declared eligible. It is also contended that as provided in Para-6 of the advertisement, performance in the interview is the sole criterion for selection and recommendation.
Page 13 of 17
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8. To the stand taken in the additional counter affidavit, an objection was filed by the Petitioner. Placing reliance on the stand taken in the objection, Petitioner contended that even though in the advertisement out of 15 vacancies 2 were reserved for SC, 2 for ST and 2 for SEBC, but the Commission in its recommendation dtd.23.05.2022 recommended 7 candidates who belong to Reserve category and accordingly it exceeds the ceiling of 50% reservation in public employment. It is also contended that 2 (two) SC reserve category candidates recommended against UR (Women) vacancy had not participated in the recruitment process, but were recommended by the Commission. It is also contended that since Petitioner has the highest API score, Petitioner taking into account her API score and the mark secured in the interview should have been recommended. But the Commission did not follow the stipulation contained in Para-6 of the advertisement and the UGC Regulation, 2018 in that regard. Because of such action of the Commission, Petitioner was deprived from the purview of selection and recommendation.
9. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner participated in the selection process in terms of the advertisement issued by the Commission vide Advertisement No. 08 of 2020-2021 under Annexure-1. In the said advertisement the method of selection is prescribed under Para 6, which is reproduced hereunder:-
Page 14 of 17
// 15 // "The appointments and conditions of service are to be guided by the provisions laid down under the Statutes as applicable to the State Public Universities.
There shall be shortlisting of candidates for each subject as per UGC guideline. The Commission has decided that five times the no of vacancies shall be shortlisted for interview when the no of vacancies is more than two. For subjects where there are only one or two vacancies, ten candidates shall be shortlisted for interview.
The academic score as specified in Appendix II (Table 3A) for universities of UGC Regulation, 2018 shall be considered for shortlisting of candidates for interview and on selection shall be based only on performance in interview.
The Commission shall be competent to determine the manner of conduct of its proceedings and to take all decisions required for selection of Assistant Professors to the Universities consistent with the provisions of the Act and Regulations prescribed in this behalf by the University Grants Commission.
Commission shall prepare a list of candidates in order of merit on the basis of performance in the interview which shall be equal to the number of advertised vacancies:
The list recommended by the Commission shall remain valid for a period of one year from the date of recommendation by the Commission." 9.1. As found from the same, for short listing of candidates to be called for interview the academic score as specified in Appendix-II (Table-3-A) for Universities of UGC Regulation 2018 shall be considered and selection shall be based only on the performance in the interview. Since the Petitioner secured the required academic score, she was short listed and called for the interview vide notice issued under Annexure-7. In terms of Para 6 of the advertisement the selection was made basing on the performance in the interview and as found from the record, Petitioner has scored only 15 marks out of 100 marks in the interview and the last such recommended candidate in UR(Women) category has secured 51 marks. Petitioner's position in the merit Page 15 of 17 // 16 // list also stands at Sl. No. 59, as against 15 vacancies so advertised in the discipline Sociology.
9.2. In view of such analysis and the marks secured by the Petitioner in the interview, which is the sole basis of selecting and recommending a candidate, this Court finds no illegality or irregularity with the action of the Commission in not recommending her name for appointment as against the discipline Sociology in UR (Women) category.
9.3. It is also found that in the advertisement issued under Annexure-1, no reservation was provided for Sportsperson. Since the Petitioner knowing fully well that no reservation is there for Sportsperson and participated in the selection process, after becoming unsuccessful, she cannot take a plea that such reservation was not provided, in view of the decision of the Hon'ble Apex Court in the case of Madras Institute of Development Studies and the order passed by this Court in the case of Kunilata Dutta. Not only that since in terms of Para 6 the selection after short listing of the candidate is only to be made basing on the performance in the interview and in the interview the Petitioner has only secured 15 marks and has been placed at Sl. No. 59 of the merit list in the discipline 'Sociology', no illegality or irregularity can also be found with regard to non-recommendation of the Petitioner. No direction can also be issued directing the Commission to recommend the name of the Page 16 of 17 // 17 // Petitioner as against the three (3) unfilled vacancies as those vacancies are against reserved categories and process of selection has since been completed.
In any view of the matter, this Court finds no illegality of irregularity with the impugned order so passed by Govt.-opp. Party No. 1 dt.20.12.2022 under Annexure-12 and accordingly dismiss the writ petition.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 13th of March, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Mar-2024 19:51:42 Page 17 of 17