Sahoo Swagatika Keshab vs State Of Odisha And Others

Biraja Prasanna Satapathy, J

This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

Heard learned counsel appearing for the Parties.

The Petitioner has filed the present Writ Petition inter alia with the following prayer:-

“(i) The Respondent No.2 be directed to modify / delete the conditions imposed under annexure-2 in column-8(iii) and 11(h) in respect of submission of Odia passed certificate with option of two years’ time to pass the Odia M.E Standard / Test as specified under annexure-4 in column No-8(iii).”

It is contended that pursuant to the advertisement issued under Annexure-2 for recruitment to the post of Dental Surgeon in Group-A (Junior Branch) of Odisha Medical Services (Dental) Cadre under the Health & Family Welfare Department vide Advertisement No.15 of 2017-18, Petitioner though was having all the eligibility criteria, but in view of the stipulation contained under Para-8.(iii) of the advertisement, since the Petitioner became ineligible to make the application, she approached the Tribunal in O.A. No.931(C) of 2018. The Tribunal while issuing notice of the matter vide order dtd.13.04.2018 directed the Opposite Party No.2 to accept the application of the Petitioner as per the advertisement at Annexure-2 and also directed Opposite Party No.2 to allow the Petitioner to face the recruitment test, but the result shall not be published without leave of the Tribunal.

4.1. Learned counsel for the Petitioner contended that in the advertisement issued under Annexure-2 for recruitment to the post of (Dental Surgeon), Petitioner became ineligible to make the application in view of the stipulation contained under Para-8(iii). Para-8(iii) of the advertisement stipulates as follows:-

“(a) Passed Middle English School examination in Odia as a language subject; ‘Or’

(b) Passed Matriculation or equivalent examination with Odia as medium of examination in non-language subject; ‘Or’

(c) Passed in Odia as language subject in the final examination of Class-VII or above; ‘Or’

(d) Pass a test in Odia in Middle English School Standard conducted by the Department dealing with the matters”.

4.2. It is contended that similar advertisement issued by the self-same Odisha Public Service Commission for recruitment to the post of Medical Officer, (Asst. Surgeon) in Group-A Junior Branch of the Odisha Medical of Health Services Cadre under the Health and Family Welfare Department vide Advertisement No.12 of 2017-2018 though stipulates similar condition, but a candidate making the application in terms of the said advertisement was given liberty to pass the Middle School Examination in Odia as a language subject within two years of joining in the service, failing which no further increment shall be sanctioned.

4.3. It is contended that since in respect of the advertisement issued by the Commission vide Advertisement No.12 of 2017-2018 a relaxation was given to the candidate to pass the Middle School Examination in Odia as a language subject within two years of joining, but no such similar provision was made in the impugned advertisement issued under Annexure-2. In view of the stipulation contained under Para-8(iii) of the advertisement, Petitioner became ineligible to make the application. However, basing on the interim order passed by the Tribunal on 13.04.2018, Petitioner has not only made the application but also she has taken part in the selection process. But her result has not been published in view of the order passed by the Tribunal on 13.04.2018.

4.4. It is contented that in view of such admitted discrepancy committed by the Commission while issuing in the impugned advertisement under Annexure-2 vis-à-vis the advertisement under Annexure-4, the application of the Petitioner is required to be entertained and considered and the same cannot be rejected on the ground that the Petitioner has not passed the Middle School Examination in Odia as a language subject.

Mr. B.P. Tripathy, learned counsel appearing for the Commission on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.1.

5.1. It is contended that the stipulation so made in the advertisement under Annexure-2 was made in terms of the provisions contained under Rule-7(c) of the Odisha Medical and Health Services (Method of Recruitment and Conditions of Service) Rules, 2017.

5.2. It is contended that as provided under Rule-7(c), a candidate is required to be able to read and write and speak Odia and to have passed Middle School Examination in Odia as a language subject. Since admittedly the Petitioner has not passed the Middle School Examination in Odia as a language subject, her application is not entertainable for the post in question.

5.3. It is also contended that not only the application of the present Petitioner but also similar application of around 70 candidates were rejected by the Commission as all the candidates have not passed the Middle School Examination in Odia as a language subject.

5.4. Mr. Tripathy, also contended that since the aforesaid provision in the advertisement was incorporated in terms of Rule-7(c) of the 2017 Rules and around 70 applications including that of the Petitioner have been rejected on the ground that the candidates have not passed the required Middle School Examination in Odia as a language subject, the relief as claimed by the Petitioner is not entertainable. It is also contended that the selection process pursuant to Annexure-2 has already been completed with filing of all the advertised vacancies.

5.5. It is also contended that the selection has to be made strictly in terms of the advertisement and no deviation can be made if a candidate does not have the required qualification on the date of making the application.

In support of the aforesaid submission, Mr. Tripathy relied on the decision of the Hon’ble Apex Court in the case of  Bedanga Talukdar vs. Saifudaullah Khan and Others reported in (2011) 12 SCC 85. Hon’ble Apex Court in Para-29 of the aforesaid judgment held as follows:-

“29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure.

Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India”.

To the stand taken in the counter affidavit, learned counsel for the Petitioner contented that even though by the time the Petitioner does not have the required Odia Pass Certificate showing her to have passed the Middle School Examination in Odia as a language subject, but in the meantime she has passed the said examination held by the Board of Secondary Education in the month of December, 2018 vide Annexure-6.

6.1. It is accordingly contended that since the Petitioner during pendency of the matter has acquired the qualification and has passed the 7th standard in Odia examination vide Annexure-6 and the Petitioner is otherwise eligible in all respect, necessary direction be issued to the Commission to publish her result and to take a consequential action if she has qualified the test.

Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that in the advertisement issued under Annexure-2, a candidate in addition of having the required educational qualification is required to have the other eligibility condition as provided under Para-8 of the advertisement. Under Para-8.(iii), it has been clearly indicated that the candidate must be able to speak read and write Odia fluently and must have passed Middle School Examination in Odia as a language subject. Since as per the own admission of the Petitioner she does not have the qualification by the time she made the application under Annexure-2, this Court placing reliance on the decision as cited (supra) is of the view that no relaxation can be extended in favour of the Petitioner by allowing to take part in the selection process.

In view of such position, this Court is not inclined to entertain the writ petition and dismiss the same.

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