Orissa High Court
Niva Nayak vs F.M. University & Others .... Opposite ... on 13 December, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21396 of 2023
In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950.
..................
Niva Nayak .... Petitioner
-versus-
F.M. University & Others .... Opposite Parties
For Petitioner : M/s.S.K. Das, P.K. Behera &
N. Jena.
For Opp. Parties : M/s. Mr. D. Mohapatra, Adv.
for O.P.1,3 & 4, Mr. N.K.
Sahu, Adv. for O.P.5
Mr.K.C.R. Mohapatra Adv. for
O.P.6
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:14.08.2023 and Date of Judgment:05.12.2023
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Biraja Prasanna Satapathy, J.
1. The Petitioner has filed the present Writ Petition challenging the communication issued by the Registrar Fakir Mohan University, Vyasa Vihar (North Campus), (in short 'University') under Annexure-9, wherein the claim of the Petitioner for her appointment as against the post of Associate Professor in the discipline of Chemistry, pursuant // 2 // to the selection process initiated vide advertisement dtd.10.07.2019 under Annexure-1 was rejected.
2. It is the case of the Petitioner that pursuant to the advertisement issued by the University on 10.07.2019 under Annexure-1 for the post of Associate Professor in different discipline, Petitioner made her application in respect of the discipline Chemistry as an Unreserved (Women) category candidate. In the advertisement issued under Annexure-1 as against two posts of Associate Professor so advertised in the discipline of Chemistry, one was reserved for Unreserved (Male) and the other one for Unreserved (Women) candidate. Pursuant to the said advertisement issued under Annexure-1, Petitioner made her application on 02.08.2019 vide Annexure-2 and the application of the Petitioner being found in order in all respect, vide Annexure-3, Petitioner was called to appear the interview on 16.03.2020 and for verification of documents on the date of interview itself. 2.1. It is contended that in terms of such intimation issued under Annexure-3, Petitioner appeared in the interview. However after due verification of all the documents as required, when both the posts of Associate Professor in the discipline of Chemistry was filled up by Unreserved (Male) candidates and it was indicated in the Page 2 of 34 // 3 // proceeding of the meeting of the Selection Committee so held on 16.03.2020 under Annexure-5, that since no women candidates were found suitable, a male candidate was selected as against UR (Women) category, Petitioner challenging such action of the University in declaring her unsuitable with the recommendation made in favour of Opposite Party Nos.5 & 6 approached this Court in W.P.(C) No.19275 of 2021, challenging the decision of the Selection Committee so issued under Annexure-5. Petitioner prayed for the following relief in W.P(C) 19275 of 2021.
"Under the above circumstances, it is therefore humbly prayed that the Hon'ble Court be graciously pleased to quash the entire selection of Associate Professor in PG Department of Chemistry of Fakir Mohan University under Annexure-5 and also quash the consequential appointments of the Opposite Party No.5 and 6 thereof;
And further the Hon'ble Court be pleased to direct Opposite Parties No.1 and 3 to appoint an women candidate against the UR (Women) post of Associate Preofessor in Chemistry by an eligible women candidate preferably the petitioner, who has better academic achievements, experiences and publications then all other women candidate and to grant all consequential service and financial benefit within a stipulated period as deem fit and proper".
2.2. This Court after hearing learned counsels appearing for the Parties and after going through the materials available on record, disposed of the writ petition vide order dtd.09.09.2022. Since it was the stand of the Petitioner in the earlier writ petition that the post meant for UR (Women) candidate cannot be filled up by UR (Male) category candidates, because of the provisions contained under Page 3 of 34 // 4 // Odisha Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 (in short 1994 Rules) and the method of selection prescribed in the amended Odisha Universities First Statute, 1990, this Court while disposing the writ petition vide order under Annexure-8 issued the following direction on the University. The view of this Court reflected in Para-7 and the direction of this Court reflected in Para-8 of the order are quoted hereunder:-
"7. In such view of the matter, this Court is of the view that since the reservation of women candidate flaws from the mandate of the Constitution of India, the said constitutional mandate has to be strictly followed. In view of such mandate, the Selection Committee should relook the selection process especially with respect to selection of Associate Professor in the Department of Chemistry of Fakir Mohan University, Vyasa Vihar, District-Balasore, considering the Rules and the Advertisement dated 10.07.2019 under Annexure-1.
8. In view of the above, let the University relook the entire issue afresh as stated above taking into account the Rules and the Advertisement dated 10.07.2019 under Annexure-1 within a period of two months from today".
2.3. The order passed by this Court on 09.09.2022 was further modified vide order dtd.21.11.2012.The modified order dtd. 21.11.2022 is quoted hereunder:- "I.A. No.15033 of 2022
1. This matter is taken up through hybrid arrangement.
2. This is an application correction of the order dated 09.09.2022 passed in W.P.(C) No.19275 of 2021.
3. Heard.
4. Considering the averments made in the I.A., the prayer for modification is allowed. The modified paragraphs i.e., 6 & 8 of the order are reproduced hereunder and read as such.
Page 4 of 34
// 5 //
6. However, it is also true that this Court cannot sit as a Super Selection Committee to decide as to whether the Petitioner is suitable or not. It is also quite apparent that the reason for unsuitability of the present Petitioner has not been reflected in the Resolution of the Selection Committee.
xxx xxx xxx
8. In view of the above, let the University relook the entire issue afresh as stated above taking into account the Rules and the Advertisement dated 10.07.2019 under Annexure-1 within a period of one month from today i.e. 21st of November, 2022.
5. With the aforesaid modification, the I.A stands disposed of".
2.4. It is contended that without following the direction so contained in order dtd.09.09.2022 and so modified vide order dtd.21.11.2022, Opposite Party-University by taking a new plea that the Petitioner since could not secure the required cut-off mark of 50%, the Selection Committee did not found her suitable and opined that due to non- availability of suitable women candidate, the post so reserved for UR (Women) category was filled up by UR (Male) category, candidates vide the impugned communication issued on 19.04.2023 under Annexure-9. The Present Writ Petition has been filed inter alia challenging the order of the University so issued by Opposite Party No.1 on 19.4.2023 under Annexure-9.
3. Learned counsel for the Petitioner contended that the Petitioner with having the requisite qualification and the eligibility in all respect made her application as against the post of Associate Professor in the discipline of Chemistry, Page 5 of 34 // 6 // pursuant to the advertisement issued by the University on 10.07.2019 under Annexure-1. The eligibility criteria reflected in the said advertisement as against the post of Associate Professor is quoted hereunder:-
"B. Associate Professor Eligibility
(i) A good academic record, with a Ph.D Degree in the concerned/allied/relevant disciplines.
(ii) A Master's Degree with at least 55% marks (or an equivalent grade in a point-scale, wherever the grading system is followed)
(iii) A minimum of eight years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution/industry with a minimum of seven publications in the peer-review or UGC-listed journals and a total research score of Seventy-Five (75) as per the criteria given in Appendix-II, Table 2 of the UGC Regulation 2018".
The Petitioner in terms of Anneuxre-1 made her application for the post of Associate Professor in the discipline of Chemistry under Annexure-2 and along with her application, Petitioner enclosed all the documents in support of her teaching experience as well as publication of Journals on 02.08.2019. The application of the Petitioner so submitted under Annexure-2 having been found in order in all respect, Petitioner vide letter dtd.26.02.2020 so issued by Opposite Party No.1 under Annexure-3, was directed to appear in the interview, which was fixed to 16.03.2020 and for verification of all documents. Page 6 of 34
// 7 // 3.1. It is contended that the selection for the post of Associate Professor in terms of Annexure-1 was required to be conducted in terms of the provision contained in the amended Schedule-A of Odisha Universities First Statute, 1990. Schedule-A of the Odisha Universities First Statute, 1990 prescribed the method of evaluation of the candidates for different teaching post in the University. The evaluation as prescribed in the amended Schedule-A of the First Statute is quoted hereunder:-
"Amendment of Statute-3 "2. In the Orissa Universities First Statutes, 1990 (hereinafter referred to as the said statutes), in clause (ii) of sub-statute(5) if statute 4, after the word "Professor" the comma and the words "Reader and Lecturer" shall be inserted.
Amendment of Statute-258 Schedule-'A'
3. In the said statutes, for Schedule 'A' the following Schedule shall be substituted, namely:-
"SCHEDULE-'A' (Statute-258) Evaluation of candidates for different teaching post in the University (Professor, Reader, Lecturer) (1) GENERAL CAREER (30 MARKS) (A) 1st Class 2nd Class 3rd Class (i) H.S.C. 4 28 1 (ii) Intermediate (+2) 4 2 1
(iii) Degree. Honours 8 4 1.5.(pass)
(iv) Distinction 2 2 2 (pass) Page 7 of 34 // 8 //
(v) P.G. Degree 75-100% 12 65-74% 0 55-64% 0 45-54% 4".
(b) Marks for matriculation and Intermediate may be re-distributed as follows in the case of candidate passing Higher Secondary/ Pre- University/Pre-Professional etc. in case where Higher Secondary Examination is initial assessable examination.4.S.6. mark (of 4.2.1) be added to it making it 6.3 and 1.5. for I, II and III division.
1st Class 2nd Class 3rd Class (i) Higher Secondary 6 3 1.5 (ii) Pre-University 2 1 0.5 (iii) Pre-Profession 2 1 0.5
(c) In case of candidates from Universities/ Institutions which follow the system of grade their grades shall be converted to mark as under-
'C' Grade -75-100%
'A' Grade -65-74%
'B' Grade -55-64%
'C' Grade -45-54%
'D' Grade -35-44%
(d) In the case of candidates with more than one Bachelor's Degree,
only the Degree in the concerned subject shall be awarded marks and the Division obtained will be treated at par with the Honours.
2. RESEARCH DEGREE : 20 MARKS) M.Phil -03 marks Ph.D. Degree -10 marks D.Sc.D.Litt. -12 marks M.Phil + Ph.D. -12 marks M.Phil+D.Sc./D.Litt -14 marks Ph.D + D.Sc./D.Sc./D.Litt-20 marks M.Phil+ Ph.D.+ D.Sc./D.Litt-20 marks
3. TEACHING EXPERIENCE (10 MARKS) (For each completed year one mark in case of P.G. Teaching. 0.75 marks for Honours teaching and 0.5 marks Graduate level teaching subject to a maximum of 10 marks over and above the minimum prescribed years).
4. Ph. D GUIDANCE (5 MARKS) One mark shall be awarded for each Ph.D. awarded under the guidance of the candidate subject to a maximum of 5 marks.
5. RESEARCH PUBLICATIONS (15 MARKS) ( IN MARKS FOR PUBLICATION IN International Journal and 5 marks for publication in the National Journals).
6. VIVAVOCE (15 MARKS)
7. C.C.Rs Performance Appraisal Report (5 marks)". 3.2. It is contended that since as against two posts of Associate Professor in the discipline of Chemistry, one post was reserved for UR (Women) category, Petitioner having Page 8 of 34 // 9 // made her application as against the said category, the provisions contained under the Odisha Civil Service (Reservation of Vacancy for Women in Public Services) Rules, 1994 (in short 1994 Rules) is required to be followed. 3.3. It is contended that Rule-4 of the aforesaid 1994 Rules provides as under:-
"4. Reservation-(1) The following percentage of vacancies, out of the total vacancies arising in a year in Class-II, specially declared gazette, Class-III and Class-IV services/posts to which women candidates are eligible to be appointed and which are filled up by way of direct recruitment, shall be reserved for the women candidates.
Category Women Men Total (1) (2) (3) (4) Physically Handicapped .. 1% 2% 3% Sports men .. 0.33% 0.67% 1% Ex-Servicemen .. .. 3% 3% General Candidates 18.33% 36.67% 55%
(2) Notwithstanding anything contained in sub-rule (1), reservation made in favour of women candidates in excess of 30% of the total vacancies in the Class-II, specially declared gazette, Class-III and Class-IV services/posts, shall continue. (3) If in any year, the vacancies reserved for a particular category of women candidates specified under sub-rule(1) remain unfilled due to non-availability of suitable women candidates belonging to the respective category, the unfilled vacancies shall be filled up by suitable male candidates of the same category:
Provided that in case of non-availability of suitable male candidate of that category, the vacancy shall be filled up by women candidate of general category".
As per the said rules, 33% of the vacancies are to be filled up by women candidates.
3.4. It is contended that Petitioner is having all the eligibility criteria for her selection and appointment as Page 9 of 34 // 10 // against the post of Associate Professor in terms of the eligibility criteria prescribed by the University Grants Commission in its Regulation, 2018 vide Annexure-4.
Petitioner is also having all the eligibility criteria as prescribed in the advertisement issued under Annexure-1. But the University when issued the notice under Annexure- 5 by recommending private Opposite Party Nos.5 and 6 as against both the vacancies for the post of Associate Professor in the discipline of Chemistry and in the said notice, it was indicated that since no women candidate was found suitable, a male candidate was selected from UR (Male) category, Petitioner challenging such action of the University approached this Court in W.P.(C) No.19275 of 2021.
3.5. It was the stand of the Petitioner in the earlier writ petition that since in the advertisement under Annexure-1, out of 2 vacancies as against the post of Associate Professor in the discipline of Chemistry, one post is reserved for UR (Women) candidate, in view of the provisions contained under the 1994 Rules, Petitioner should have been selected as against UR (Women) category and that post could not have been filled up by recommending Opposite Party No.5 who admittedly belongs to UR (Male) category. Page 10 of 34
// 11 // 3.6. It was also the stand of the Petitioner that since the Petitioner was found suitable and was allowed to appear the interview in terms of Annexure-3, the ground indicated in Annexure-5 that no women candidate was found suitable is not legal and justified.
3.7. It is contended that in the aforesaid writ petition a detailed counter affidavit was filed by the Opposite Party University. In the counter affidavit so filed by the University, it was never the stand of the University that the Petitioner since could not secure the required 50% cut off mark, she was not found suitable as against the vacancy meant for UR (Women) category and Opposite Party No.6 having been found eligible having secured more mark than the Petitioner, he was recommended as against the said vacancy as an UR (Male) category candidates. However, taking into account the contentions raised by the Petitioner before this Court that the post reserved for UR (Women) category candidates could not have been filled up by a candidate belonging to UR (Male) category only by taking the plea that no suitable women candidate was found suitable, this Court disposed of the writ petition vide order dtd.09.09.2022. Subsequently, the order dtd.09.09.2022 was also modified vide order dtd.21.11.2022. Page 11 of 34
// 12 // 3.8. It is vehemently contended that since it was never the stand of the University in the earlier writ petition that the petitioner was not found suitable as she could not secure the required 50% cut-off mark so fixed by the Selection Committee, the rejection of the Petitioner's claim on that ground vide the impugned communication issued on 19.04.2023 under Annexure-9 is not sustainable in the eye of law.
3.9. To substantiate such stand that no such cut-off mark was ever fixed, learned counsel for the Petitioner brought to the notice of this Court the information provided by the University in favour of one Dr. Suprava Nayak, who was also a candidates in terms of the advertisement issued under Annexure-1 for the post of Associate Professor in the discipline Chemistry, vide Annexure-7 dtd.22.07.2020. In the said information, it is contended that there was no indication of cut-off mark so fixed in the proceeding of the selection board. The information so provided under Annexure-7 vide Cl.IV is quoted hereunder:-
"(iv) As per the decision of the selection board no women candidates were found suitable. Hence, a male candidate was selected for UR (W) category. There is no indication of cut-off Mark in the proceedings of the Selection Board".
3.10. It is accordingly contended that since it was never the case of the University that cut-off mark was fixed at 50% by the Selection Board and the Petitioner having not secured Page 12 of 34 // 13 // the said cut-off mark she was not selected, the ground on which the claim of the Petitioner was rejected vide Annexure-9 is not sustainable in the eye of law and requires interference of this Court.
3.11. It is also contended that this Court while disposing the writ petition vide order dtd.09.09.2022 so modified vide order dtd.21.08.2022 clearly held that the University has to relook the entire issue afresh taking into account the rules i.e.1994 rules, which provides the reservation to the extent of 33% in favour of the women candidates and the basis of selection so prescribed in the advertisement dtd.10.07.2019.
3.12. Learned counsel for the Petitioner also contended that since the criteria for such selection as prescribed in the Odisha Universities First Statute vide Schedule-A is to be followed and in the said Schedule, nothing was indicated with regard to fixation of any cut-off mark, the ground taken by the University while rejecting the claim of the Petitioner vide Annexure-9 is also not sustainable in the eye of law.
3.13. It is also contended that Petitioner though is more meritorious, but she has not been given the required mark with regard to her teaching experience as well as research Page 13 of 34 // 14 // publication. The selection board intentionally and deliberately awarded less mark in favour of the Petitioner with regard to teaching experience and research publication.
The selection board intentionally and deliberately also did not award any mark towards CCR performance appraisal report while awarding such mark in favour of Opposite Party Nos.5 & 6.
3.14. It is also contended that since neither in the advertisement nor in the University First Statute vide Schedule-A, such a cut-off mark was prescribed, the stand taken by the Opposite Party-University while rejecting the claim of the Petitioner under Annexure-9 by indicating that the Petitioner since could not secure the 50% cut-off mark, she was not found suitable cannot be accepted. Such a stand taken by the University is also contrary to the stand taken in Annexure-7.
3.15. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of the Hon'ble Apex Court reported in the case of K. Manjusree Vs State of Andhra Pradesh and another, (2008) 3 SCC 512. Hon'ble Apex Court in Paragraph-27 of the said judgment held as follows: Page 14 of 34
// 15 //
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II).
In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them -- P.K. Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa.
3.16. Learned counsel for the Petitioner also relied on another decision of the Hon'ble Apex Court in the case of Goa Public Service Commission Vs. Pankaj Rane and Others, (2022) 11 SCC 742. Hon'ble Apex Court in Paragraph 23 to 28 of the said judgment held as follows.
23. In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test/computer test, only 7 candidates which included Respondents 1 to 3 cleared the test. The number stood further reduced to 4 and which again included Respondents 1 to 3. Therefore, when the question arose as to how the interview should be conducted, the Commission decided on 16-5-2017 to fix 26 marks out of 40 as cut-off marks. It no doubt works out at 60% of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard.
Page 15 of 34
// 16 //
24. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz. the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission . That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7½ years of practice although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an advocate or pleader of Madhya Pradesh was a minimum requirement.
25. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav is concerned, this again is not a case which involved a rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the Constitution.
26. Para 13 of Yogesh Yadav is extracted hereinbelow :
(SCC p. 628) "13. The instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since a benchmark was not stipulated for giving the appointment, what is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of Page 16 of 34 // 17 // changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case.
27. Though the learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case. In other words, we would think that in the facts of this case, they are closer to the facts in P.K. Ramachandra Iyer case and the judgment following the same which we have already noted. As far as Tej Prakash Pathak case is concerned, it again did not specifically involve a rule similar to Rule 12.
28. It is true that there is a distinction in the facts with those in K. Manjusree . We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P.K. Ramachandra Iyer and Durgacharan Misra for the reasons which we have already indicated." 3.17. The decision of the Hon'ble Apex Court in the case of Ramjit Singh Kardam and others Vs. Sanjeev Kumar and Others (2020), 20 SCC 209 was also relied on by the learned counsel for the Petitioner. Hon'ble Apex Court in Paragraphs 33.1,33.2,45, 45.1 & 45.2 of the said judgment has held as follows-:
33.1. Whether the respondent writ petitioners who had participated in the selection were estopped from challenging the selection in the facts of the present case?
33.2. Whether the respondent writ petitioners could have challenged the criteria of selection applied by the Commission for selection after they had participated in the selection?
xxxx xxxx xxxx xxxx
Page 17 of 34
// 18 //
45.The Division Bench of the High Court is right in its conclusion that the selection criteria, which saw the light of the day along with the declaration of the selection result could be assailed by the unsuccessful candidates only after it was published. Similarly, selection process which was notified was never followed and the selection criteria which was followed was never notified till the declaration of final result, hence, the writ petitioners cannot be estopped from challenging the selection. We, thus, hold that the writ petitions filed by the petitioners could not have been thrown on the ground of stopped and the writ petitioners could very well challenge the criteria of selection applied by the Commission, which was declared by the Commission only at the time of declaration of the final result. We, thus, answer Points 1 and 2 as follows:
45.1. The writ petitioners, who had participated in the selection are not estopped from challenging the selection in the facts of the present case. 45.2. The writ petitioners could have very well challenged the criteria of selection, which was declared by the Commission only in the final result declared on 10-4-2010.
3.18. Making all such submission and relying on the decisions as cited (supra), it is contended that the rejection of the Petitioner's claim for her appointment as against the post of Associate Professor in the discipline of Chemistry as an UR (Women) category candidate vide order dated 19.04.2023 under Annexure-9 is not sustainable in the eye of law and it requires interference of this Court with passing of an appropriate order.
4. Mr. D. Mohapatra, learned counsel appearing for the University on the other hand made his submission basing on the stand taken by Opposite Party Nos.1, 3 & 4 in the counter.
Page 18 of 34
// 19 // 4.1. It is contented that though in the advertisement issued under Annexure-1, one post of Associate Professor in the discipline of Chemistry was reserved for UR (Women) category candidate, but in the said advertisement it was clearly indicated that in case of non-availability of suitable women candidates the post shall be filled up by male candidates of the same category.
4.2. It is accordingly contended that since the selection board does not find the Petitioner suitable as against the post in question, the post was recommended to be filled up by a male candidate by the selection board under Annexure-5. The said recommendation of the selection board issued under Annexure-5, when was challenged by the Petitioner before this Court in W.P.(C) No.19275 of 2021, this Court while disposing the writ petition vide order dtd.09.09.2022 directed the University to relook the entire issue afresh taking into account the rules and the advertisement issued under Annexure-1. 4.3. It is contended that in terms of the said order and after relooking the issue in all respect afresh, it was found that the Petitioner has not been found suitable by the Selection Board, as she failed to secure the required 50% cut-off mark which was fixed by the Selection board. Accordingly her claim was rightly rejected vide the Page 19 of 34 // 20 // impugned communication issued on 19.04.2023 under Annexure-9.
4.4. It is also contended that Section-21 of the University Act, 1989 in the meantime has been repealed with promulgation of Orissa University Amendment Act w.e.f. 04.09.2020. As per the said amended act, University is no more authorized to recommend the name of the Teacher to be appointed as faculty of the University and the said power has now been vested with the Odisha Public Service Commission.
4.5. It is also contended that after the matter was remitted by this Court vide its order dtd.09.09.2022, the then Vice- Chancellor of the University, who was the Chairman of the Selection Board was requested by the University to apprise about the criteria and modality followed while selecting the candidate for the post of Associate Professor in the discipline of Chemistry. The then Vice-Chancellor vide her letter dtd.17.12.2022 under Annexure-A to the counter since indicated that the Selection Board fixed the cut-off mark at 50% and no women candidate including the present petitioner since could not secure such cut-off mark of 50%, no women candidate was found suitable. Accordingly, the post in question was recommended to be filled up by a male candidate of the same category. Page 20 of 34
// 21 // 4.6. It is contended that since the selection board fixed the cut-off mark at 50% as opined by the Chairman of the Selection Board vide Annexure-A and the Petitioner admittedly having not secured the said cut-off mark, she was not found suitable and accordingly recommendation was made to fill up the said vacancy by a male candidate of the said category. Such a recommendation to fill up the post in question by a male candidate is in terms of the advertisement issued under Annexure-1. 4.7. It is also contended with regard to selection to the post of Professor in the Department of Education, when this Court directed the University to declare the result of the interview so conducted in terms of Advertisement issued on 10.07.2019 vide order dated 23.12.2020 in W.P.(C) No.32266 of 2020, University sought for instruction from the Govt. in the department of Higher Education. Opp. Party no.1 vide letter dated 10.02.2021 under Annexure-B intimated that in view of the repeal of Odisha Universities (Amendment) Act, 2020 w.e.f. 04.09.2020, the teachers of State Public University shall only be appointed by Odisha Public Service Commission. It is accordingly contended that in view of such clarification issued by Opp. Party No.1 under Annexure-B, University is not competent to provide appointment to the petitioner, even if she is found eligible. Page 21 of 34
// 22 // 4.8. It is contended that since in terms of the earlier order passed by this Court the entire thing was reassessed and basing on the stand taken by the then Chairman of the Board that the Petitioner could not secure the required cut- off mark of 50%, she was not found suitable, Opposite Party No.1 basing on such communication of the Chairman of the earlier selection board, rejected the claim of the Petitioner. It is accordingly contended that there is no illegality or irregularity with regard to rejection of the Petitioner's claim and it requires no interference.
5. Learned counsel appearing for the Opposite Party Nos.5 & 6 also made their submission basing on the stand taken in the counter affidavit so filed by them. While supporting the stand taken by the University in its counter, learned counsels appearing for the Opposite Party Nos.5 & 6 contended that Petitioner could not secure the required cut-off mark so fixed by the selection board, in terms of the stipulation contained in the advertisement. Accordingly Selection Board vide Annexure-5 while recommending Opposite Party Nos.5 &6, held that no suitable women candidate was available. The selection board rightly made the recommendation under Annexure-5 by recommending Opposite Party No.5 as against the post meant to be filled up from UR (Women) category candidates.
Page 22 of 34
// 23 // 5.1. It is accordingly contended by the learned counsel appearing for Opposite Party No.5 that since the Petitioner could not secure the cut-off mark so fixed by the Selection Board and he having secured more marks than the Petitioner, he was rightly recommended and appointed and accordingly no illegality has been committed by the University in rejecting the claim of the Petitioner for her appointment as against the vacancy meant for UR (Women) category candidates.
6. Mr. S.K. Das, learned counsel for the Petitioner made further submission with regard to the stand taken by the University in its counter by filing a rejoinder affidavit. It is contended that though under Rule-4 of the 1994 Rules, it is clearly indicated that the post ear-marked for UR (Women) category can be filled up by a male candidate, if there are no eligible women candidates and the said provision was also reflected in the advertisement issued under Annexure-1, but the action of the selection board while coming to the conclusion that no women candidate was found suitable is not sustainable in the eyes of law and it requires interference of this Court.
6.1. It is contended that since the selection in terms of Annexure-1 was required to be conducted in accordance with the Odisha Universities First Statute so prescribed Page 23 of 34 // 24 // under Schedule-A, no cut-off mark could have been fixed by the selection board as indicated in the impugned rejection available at Annexure-9.
6.2. It is also contended that since no such cut-off mark was ever fixed by the selection board as indicated by the University under Annexure-7, the ground on which the claim of the petitioner was rejected on remand of the matter by this Court, is also not sustainable in the eye of law. 6.3. It is also contended that Petitioner while being found unsuitable has been awarded 48 marks in the interview while private Opposite Party No.5 has been awarded 56 marks and private Opposite Party No.6 has been awarded 57.5 marks.
6.4. It is further contended that the Petitioner intentionally and deliberately was not awarded the required mark with regard to her research publication and she has also not been awarded the required mark for her teaching experience.
6.5. It is contended that as per the Schedule-A, 10 marks was provided with regard to teaching experience and for research publication 15 mark was prescribed. Out of 15 marks so provided for research publication, 10 marks is for publication of international journals and 5 marks is for Page 24 of 34 // 25 // publication of national journals. Under Schedule-A no such prescription was there with regard to how many publications in the international journal are required to be provided for award of 10 marks and how many research publications in the national journal for award of 5 marks. 6.6. It is contended that along with her application so submitted under Annexure-2, Petitioner provided the required numbers of national and international journals and accordingly out of 15 marks so prescribed she should have been given the required marks with regard to publication. Similarly with regard to teaching experience, though the Petitioner provided teaching experience of 17 years, but out of total marks provided for such purpose at 10, Petitioner was only allowed 5 marks, which is not in accordance with the provision contained in Schedule-A of the First Statute Schedule.
6.7. It is contended that if the Petitioner would have been awarded proper mark with regard to teaching experience and research publication as well as CCR performance appraisal report, the Petitioner also could have secured the cut-off mark of 50%. However, it is contended that since neither in the advertisement nor under Schedule-A there is any provision to fix any cut-off mark and as reflected from Annexure-7, no such cut-off mark was also fixed by the Page 25 of 34 // 26 // selection board while conducting the selection in terms of Annexure-1, the rejection of the Petitioner's claim that she has failed to secure the cut-off mark and accordingly she was not found suitable as against UR (Women) category in terms of the advertisement as well as in terms of the provisions contained under 1994 Rules while recommending Opposite Party No.5 as against the said vacancy is not sustainable in the eye of law. 6.8. It is accordingly contended that the Petitioner since is having all the eligibility criteria and as per the provisions contained under the First Statute vide Schedule-A she was eligible as well as suitable, the recommendation of Opposite Party No.5 as against the vacancy meant for UR (Women) category candidates by holding that the Petitioner is not suitable for such recommendation, is not sustainable in the eye of law and requires interference of this Court.
7. I have heard Mr. S.K. Das, learned counsel for the Petitioner, Mr. D. Mohapatra, learned counsel appearing for the Opposite Party Nos.1, 3 and 4, Mr. N.K. Sahu, learned counsel appearing for Opposite Party No.5 and Mr. C.R. Mohapatra, learned counsel appearing for Opposite Party No.6. On their consent, the matter was taken up for final disposal at the stage of admission with due exchange of pleadings.
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// 27 //
8. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the University issued the advertisement to fill up different teaching post in different Post Graduate Department vide advertisement dtd.10.07.2019 under Annexure-1. As found from the said advertisement as against the post of Associate Professor in the discipline of Chemistry, out of the two vacancy so indicated, one was reserved for UR (Male) and another for UR (Women) candidates.
8.1. It is found from the record that the Petitioner made her application as against the vacancy meant for UR (women) category. Petitioner as found from Annexure-2, along with her application, not only produced all the relevant documents in support of her qualification but also submitted the required teaching experience for more than 17 years and the research publication as provided under the Odisha Universities First Statute vide Schedule-A. Though out of two vacancies, one was reserved for UR (women) candidate and the selection board while holding that no women candidate was found suitable, recommended the name of Opposite Party No.5 as against the vacancy meant for UR (Women) category vide Annexure- Page 27 of 34
// 28 // 5, the matter was challenged before this Court in W.P.(C) No.19275 of 2021.
8.2. This Court after hearing learned counsel appearing for the Parties, disposed of the matter vide order dtd.09.09.2022 with a direction on the University to relook the entire issue afresh and take into account the relevant rules and the advertisement issued under Annexure-1. This Court in Para-7 of the said order clearly indicated that the Selection Committee is to relook the selection process especially with respect to the selection of Associate Professor.
8.3. It is also indicated in the said order that the reservation for women candidates since flows from the mandate of the Constitution of India, the said Constitutional mandates has to be strictly followed. 8.4. It is also found from the record that in the said writ petition, the University filed a detailed counter affidavit and in the counter no such stand was ever taken that the Selection Board did not find the Petitioner suitable as she failed to secure the required cut-off mark of 50%. But it is found from the impugned communication under Annexure-9, the claim of the Petitioner in terms of the earlier order passed by this Court has been rejected only on Page 28 of 34 // 29 // the ground that the Petitioner has failed to secure the cut- off mark 50%. Since in the earlier writ petition, it was never the stand of the University that the Petitioner was not selected as she could not secure the required 50% cut-off mark, the said plea which has been taken while rejecting the claim of the Petitioner vide Annexure-9, as per the considered view of this Court is not sustainable in the eye of law.
8.5. It is also found that Opposite Party No.1 while rejecting the Petitioner's claim vide Annexure-9 simply relied on the communication issued by the Chairman of the Selection Board, who happens to be the earlier Vice Chancellor of the University so issued under Annexure-A to the counter affidavit. This Court after going through the said Annexure finds that the Chairman of the earlier selection board was also not sure with regard to fixation of such cut-off mark of 50%. The view of the Chairman of the earlier selection board reflected in Para-2 reads as follows:-
"2. As far as I remember the selection committee unanimously decided that the candidate who secures 50 or more marks in toto shall be considered as suitable for the post".
8.6. Since it is found from the record that no such cut-off mark was ever fixed, which is also fortified with the information provided by the University, under Annexure-7 and the stand of the chairman of the selection board so Page 29 of 34 // 30 // indicated in Para-2 of Annexure-A, it is the view of this Court that the rejection of the Petitioner's claim on the ground indicated in Annexure-9 is not sustainable in the eye of law.
8.7. Taking into account the stand of the Petitioner that the Petitioner was not awarded proper mark with regard to teaching experience as well as research publication, this Court while hearing the matter directed learned counsel appearing for the University to provide the selection file with regard to selection as against the post of Associate Professor in the discipline of Chemistry. The same after being produced by the learned counsel for the University was also perused by this Court. On bare perusal of the selection file, it is found that even though the Petitioner in support of her teaching experience provided required certificate showing her teaching experience at 17 years, but the same was calculated at 10 years with award of only 5 marks out of the prescribed 10 marks.
8.8. It is also found that the Petitioner out of 10 marks provided for research publication of international journals, she has only been awarded 3 marks as against publication in international journals and 1 marks as against publication in five national journals. No mark has also been awarded towards CCR appraisal in favour of the petitioner. Page 30 of 34
// 31 // 8.9. This Court after going through the selection file when found that proper mark has not been awarded with regard to Research Publication and Teaching Experience as well as CCR Appraisal, the matter when listed on 18.10.2023, this Court passed the following order:-
"1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. This matter was listed in order to clarify certain queries with regard to award of mark to the candidates in terms of the advertisement issued under Annexure-1. This Court after going through the selection file so produced by learned counsel for the University finds that for award of mark in different heads finds that nothing has been indicated with regard to the basis for awarding of mark towards research publication and CCR appraisal. Nothing has also been indicated as to how many publications in international journal a candidate has to produce in order to get the prescribed "10" marks and how many publications in national journal to get the prescribed "5" marks. Similarly, with regard to award of 859 mark for CCR appraisal, no basis has been prescribed.
3. In such view of the matter, this Court directs learned counsel appearing for the University to apprise this Court about the method of award of mark with regard to research publication and CCR appraisal and the basis adopted by the Selection Committee to award such mark.
4. As requested by Mr. D. Mohapatra, learned counsel for the Petitioner, list this matter on 01.11.2023 under the heading "to be mentioned".
5. The original selection file so produced by Mr. Mohapatra learned counsel is returned with due acknowledgment for the purpose of getting instruction as directed by this Court". 8.10. In terms of the order passed on 18.10.2023, learned counsel appearing for the University produced relevant record with regard to award of mark in favour of the candidates with regard to Research Publication, Teaching Experience as well as CCR Appraisal. This Court after Page 31 of 34 // 32 // going through the records finds that no uniformity has been maintained by the Selection Board in awarding marks towards Research Publication, Teaching Experience as well as CCR Appraisal. Nothing is also in the record with regard to the basis for award of mark in favour of eligible candidates in the aforesaid three categories i.e. Research Publication, Teaching Experience as well as CCR Appraisal. Therefore, it is the view of this Court that the Selection Board has conducted the selection in a very haphazardly manner and awarded marks in absence of any fixed criteria.
8.10. On bare perusal of the marks awarded by the Selection Board, it is also found that the Selection Board has not awarded proper mark in favour of the Petitioner towards teaching experience and research publication and no mark has been awarded towards CCR appraisal. Had the Petitioner been awarded proper mark she could have also secured the cut-off mark so fixed at 50%.
8.11. Be that as it may, since no such cut-off mark was ever prescribed either in the advertisement or in the First Statute vide Schedule-A and no such stand having been taken by the University while filing the counter in the earlier writ petition in W.P.(C) No.19275 of 2021, the ground on which the claim of the Petitioner has been Page 32 of 34 // 33 // rejected that the Petitioner was not found suitable as she has failed to secure the required 50% cut-off mark is not sustainable in the eye of law in view of the decision of the Hon'ble Apex Court in the case of K. Manjusree as cited (supra).
8.12. Therefore, this Court is inclined to quash the rejection of the Petitioner's claim on the ground indicated in Annexure-9. While quashing the same, this Court held the Petitioner suitable for her selection and appointment as against the vacancy meant for UR women category for the post of Associate Professor in the discipline of Chemistry. This Court accordingly while holding so directs the University to provide the appointment of the Petitioner as against the post of Associate Professor in the discipline of Chemistry in place of Opposite Party No.5. This Court directs Opposite Party No.1 to comply the aforesaid direction within a period of one (1) month from the date of receipt of this order. However, it is observed that if the Opposite Party No.5 can be adjusted as against any available vacancy as an Associate Professor in the discipline of Chemistry, necessary action be taken in this regard. Page 33 of 34
// 34 //
9. With the aforesaid observations and directions, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 5th of December, 2023/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2023 17:37:31 Page 34 of 34