Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 313 (ORI)

Jeetendra Mohan Bebortha v. State of Orissa

2007-05-02

N.PRUSTY

body2007
JUDGMENT A. K. GANGULY, C.J. : This writ petition has been filed challenging the judgment and order of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter referred to as “the Tribunal”) dated 9.2.1999 by which the Original Application No.1165 (C) of 1997 filed by the petitioner was dismissed. 2. The material facts of the case are that Advertisement No.145-D was issued by the Orissa Public Service Commission (hereinafter referred to as “the Commission”) in March, 1992. The petitioner having passed MBBS in the year 1983 and having com¬pleted M.S. in General Surgery in the year 1990 was working at that time as an Assistant Surgeon under the Government of Orissa having been selected by the said Commission in 1986. The Adver¬tisement was for recruitment against certain vacancies in the rank of Junior Teacher in various disciplines including 5 vacan¬cies against Surgery. Out of those 5 vacancies, three were for General Category, one for Scheduled Caste Category and one for Scheduled Tribe Category. The petitioner being a General Category candidate applied for the same. Since the petitioner is an in -service candidate, his application was also forwarded by the Directorate by its letters dated 8.5.1992 and 13/14.5.1992. Thereafter, the petitioner received a communication dated 14.9.1992 from the Commission to the effect that this application for the post was rejected as the name of the Discipline was not mentioned in his application form. Challenging such decision of the Commission, the petitioner filed O.A. No.2105 of 1992 before the Tribunal and the Tribunal issued an interim order directing, inter alia, that pending decision in the Original Application, the petitioner shall appear in the interview, which was scheduled to be held on the next date fixed and also on the next day and also preferably on the day thereafter. But, the Tribunal directed that the result of the interview shall be kept in a sealed cover and shall not be published until further orders. Pursuant to the said order dated 22.9.1992, the petitioner appeared in the inter¬view on 23.9.1992 before the Commission. Thereafter, the Commis¬sion by its communication dated 12.10.1992 recommended to the Government the names of five persons in order of merit for re¬cruitment to the post of Junior Teacher in Surgery in Class II of Orissa Medical Education Services (in short, “OMES”). Pursuant to the said order dated 22.9.1992, the petitioner appeared in the inter¬view on 23.9.1992 before the Commission. Thereafter, the Commis¬sion by its communication dated 12.10.1992 recommended to the Government the names of five persons in order of merit for re¬cruitment to the post of Junior Teacher in Surgery in Class II of Orissa Medical Education Services (in short, “OMES”). Out of those five vacancies, three were for General Category candidates, one for Scheduled Tribe candidates and one for Scheduled Caste candidates. So far as the petitioner was concerned, the Commis¬sion in its communication mentioned that initially the petitioner was not allowed to appear in the interview and subsequently he was allowed pursuant to the order of the Tribunal and as per the order of the Tribunal his result was kept in a sealed cover. Out of the said list provided by the Commission, 4 persons were appointed, of which 2 were from the General Category and one each from Scheduled Tribe and Scheduled Caste category. Thereafter by order dated 18.11.1992, the other person, namely, Dr. Siba Prasad Das, whose name was also recommended by the Commission and who was at the top of the list of selected candidates was appointed. The petitioner’s contention is that thereby all the five vacan¬cies were filled up. Thereafter by order dated 30.12.1992 Dr. Siba Prasad Pattnaik, Assistant Surgeon (opposite party No.5 herein) was appointed temporarily as a Junior Teacher in Surgery in Class II of OMES. 3. The petitioner’s contention is that the name of oppo¬site party No.5 was not mentioned in the initial merit list of five persons recommended by the Commission. The name of opposite party No.5 was in serial 6. This appears from the communication dated 8.8.1996 made by the Secretary of the Commission to the State Government. In the said list the name of the petitioner is against serial No.9. 4. The name of opposite party No.5 was in serial 6. This appears from the communication dated 8.8.1996 made by the Secretary of the Commission to the State Government. In the said list the name of the petitioner is against serial No.9. 4. On 19th March, 1996, the Tribunal allowed the Original, Application filed by the petitioner (O.A. No.2105 of 1992), inter alia, holding that the omission if any made by the petitioner in his application has been sufficiently made good in the forwarding letter of the Director of Health Services and the annexures to the application form and as such, the Tribunal held that the rejection of the petitioner’s application by the Commission was not fair and justified and the Original Application was allowed with a direction for opening the sealed cover containing the evaluation of the applicant’s performance in the interview and the Tribunal directed that the petitioner’s case should be con¬sidered by the Commission vis-a-vis other eligible candidates in accordance with the criteria prescribed for the selection in question. 5. As the order of the Tribunal dated 19.3.1996 was not carried out, the petitioner filed the miscellaneous petition in the disposed of O.A. before the Tribunal. Thereupon, the Tribunal directed the entire list of candidates including the petitioner who appeared in the interview and other connected papers to be forwarded to the State Government. Thereafter, the entire list was forwarded to the State Government and the name of the peti¬tioner as noted above was at item No.9. 6. In the background of these facts, the learned counsel for the petitioner submits that after advertisement in 1992, the next advertisement issued by the O.P.S.C. is of 1996. Therefore, in between there could not have been any appointment but there have been various ad hoc appointments since 1994. There were four ad hoc appointees in General Surgery and this will appear from serial Nos.34 to 39 which is a part of Annexure-16. 7. As no action was taken by the State Government on the list dated 8.8.1996, the present O.A. was filed before the Tribu¬nal on 2.4.1997 and the same was dismissed by the Tribunal. 8. Assailing the said judgment, the petitioner contended that there is no fault on the part of the petitioner and he suf¬fered on account of the mistake committed by the O.P.S.C. in rejecting his application. 8. Assailing the said judgment, the petitioner contended that there is no fault on the part of the petitioner and he suf¬fered on account of the mistake committed by the O.P.S.C. in rejecting his application. Apart from that, learned counsel for the petitioner submits that action of the O.P.S.C. cannot be sustained in law in inasmuch as the O.P.S.C. withheld the entire list inter alia on the ground that only five vacancies were advertised and five names were forwarded and the O.P.S.C. was under a mistaken idea that names of other persons need not be sent. According to the petitioner, this is contrary to the set¬tled legal position. 9. Learned counsel for the petitioner of course accepted the position under Rule 16 of the Orissa Medical Education Serv¬ice Recruitment Rules, 1979, the list shall remain valid for one year and the said list which has been forwarded by the O.P.S.C. on 8.8.1996 should remain valid up to 8.8.1997 and before expiry of the said validity period of the list, the petitioner filed the instant O.A. and during pendency of the same before the Tribunal, the validity of the list expired and that should not defeat the right of the petitioner. Learned counsel for the petitioner fur¬ther urged that if the stand of the O.P.S.C. and the State Gov¬ernment is that only five posts were advertised, and the peti¬tioner cannot be appointed, then Opposite party No.5 could not have been appointed since his name was not in the list of five names sent to the State Government and the mere fact that oppo¬site party No.5 has continued for a long time is no ground to retain him in service. So the appointment of opposite party No.5 be quashed. 10. Learned counsel for the opposite party No.5 on the other hand submits that no challenge can be made to his appoint¬ment at this stage. The learned counsel submitted by referring to the O.A. filed by the petitioner before the Tribunal that his appointment was not at all challenged by the petitioner before the Tribunal. The appointment of opposite party No.5 was notified in the Gazette in 1992. The learned counsel submitted by referring to the O.A. filed by the petitioner before the Tribunal that his appointment was not at all challenged by the petitioner before the Tribunal. The appointment of opposite party No.5 was notified in the Gazette in 1992. By referring to the O.A. filed by the petitioner before the Tribunal (O.A. No.1165(c)/1997) the learned counsel submitted that in paragraph 6(1) of O.A., the appointment of Opposite party No.5 was referred to, but was not challenged and in the relief clause in the O.A. This Court finds that those contentions raised by the opposite party No.5 are correct. In paragraph-3 of the counter filed by the opposite party No.5 before the Tribunal it was made very clear by the opposite party No.5 that no challenge has been made to his appointment and no relief has been claimed against him. In the aforesaid facts situation, this Court finds that the challenge to the appointment of opposite party No.5 in this writ petition filed before the Court cannot be entertained by the Court. It is well settled that this Court while exercising its power of judicial review over the decision rendered by the Tribunal cannot consider a case which was not made out by the parties before the Tribunal save in an exceptional situation. In the instant case, this Court finds that in the writ petition there is a prayer for quashing Annexure-14 by which appointment of opposite party No.5 was made, but this prayer was definitely not made by the petitioner before the Tribunal. So a new case which is made out by the petitioner before this Court cannot be considered by this Court, specially when it was open to the petitioner to make such prayer before the Tribunal when he filed the O.A. in 1997. The petitioner was aware of the appointment of opposite party No.5 and has referred to the same in his O.A. but has not challenged the same. The opposite party No.5 has taken that point in his counter before the Tribu¬nal, even then the O.A. was not amended and that challenge was not made. Therefore, the present challenge to the appointment of opposite party No.5 cannot be made. The opposite party No.5 has taken that point in his counter before the Tribu¬nal, even then the O.A. was not amended and that challenge was not made. Therefore, the present challenge to the appointment of opposite party No.5 cannot be made. Reference in this connection may be made to the paragraph 93 at page 1194 of the judgment of the Supreme Court in the case of L. Chandra Kumar v. Union of India and others, reported in AIR 1997 SC 1125 . 11. The petitioner cannot challenge the appointment of opposite party No.5 before the High Court for the first time, when that case was not made out before the Tribunal. The petition¬er cannot convert this Court into a Court of first instance which is contrary to the ratio in the case of L. Chandra Kumar. 12. So far as the claim of the petitioner and the judgment of the Tribunal dated 9.2.1999 is concerned, this Court finds that the petitioner was placed against item No.9 in the list sent by the Commission in August, 1996 to the State Government in respect of the examination which was conducted pursuant to 1992 advertisement. The correctness of the petitioner’s placement was not assailed before this Court by the learned counsel for the petitioner. Therefore the placement of the petitioner’s name at serial No.9 having been not challenged before this Court, this Court finds that no one who is below the petitioner in the said list has been appointed. Therefore, the petitioner has not suf¬fered any injustice despite the fact that the petitioner’s appli¬cation was erroneously rejected by the Commission. Even if the petitioner’s application had not been erroneously rejected and was forwarded with the ninth position in the list and which has not been assailed before us, the petitioner would not have been appointed being a general category candidate. The opposite party No.5 occupied fourth position in the list of the general category and was appointed. The other contention of the petitioner that the Commission should have sent the entire list to the Government in stead of sending the list of only five persons may have some substance. But the said list was sent in the year 1992 and chal¬lenge to the same cannot be made in 1997 by the petitioner. The other contention of the petitioner that the Commission should have sent the entire list to the Government in stead of sending the list of only five persons may have some substance. But the said list was sent in the year 1992 and chal¬lenge to the same cannot be made in 1997 by the petitioner. The other contention that validity of the list which was sent by the Commission to the State Government in August, 1996 should be valid upto August, 1997 and subsequent appointment should be made from the said list without calling for a new advertisement is also not acceptable argument in the facts of the case. Once the subsequent advertisement is made on 2.7.1996 being Advertisement No.7 of 1996, the previous list cannot survive. In fact, the communication on 8.8.1996 made by the Commission for the entire list was made after the advertisement dated 2.7.1996. The peti¬tioner did not participate in the said advertisement nor the subsequent advertisement appears to have been challenged by the petitioner in the O.A. out of which the present writ petition arises. 13. So judging the case from all the angles, this Court cannot come to the conclusion that the judgment passed by the Tribunal can be interfered with by it in this writ peti¬tion. The learned counsel for both the petitioner and the oppo¬site party No.5 cited a number of judgments but since the case can be decided on its facts, the points raised in those judgments need not be discussed. 14. This Court, however, observes that if in future there is any advertisement and the petitioner participates in the same in accordance with the eligibility condition, his case may be considered. 15. For the reasons aforesaid, this writ petition is dis¬missed. There shall be no order as to costs. N. PRUSTY, J. I agree. Petition dismissed.