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2010 DIGILAW 196 (ORI)

Gayatri Datta Nayak v. State of Orissa

2010-03-23

B.K.NAYAK, B.P.DAS

body2010
JUDGMENT B.P. DAS, J. — The aforesaid three writ applications have been filed challenging the interim order dated 26.2.2010 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.218 (C) of 2010 and a batch of Original Applications, directing the Orissa Public Service Commission (OPSC) not to proceed with the viva voce test and the selection of candidates to be appointed in the post of Civil Service pursuant to Orissa Civil Service (Main) Examination, 2006. 2. W.P.(C) No.4635 of 2010 and 4886 of 2001 have been filed by some of the candidates, who are yet to appear in the viva voce test after being successful in the O.C.S. (Main) Exami¬nation. W.P.(C) No.4826 of 2010 has been filed by the OPSC. Opposite parties 3 to 16 in W.P.(C) No.4886 of 2010 are the applicants before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. 3. Since in all the three writ applications, the interim order of the Tribunal was under challenge, the same were heard together and are being disposed of by this common order. The writ applications were listed for admission on 15.3.2010. Thereafter, the same were posted to 16.3.2010 for admission, on which date, at the stage of admission, the hearing was concluded. 4. The brief facts leading to the writ application are as follows:- Opposite parties 3 to 16 in W.P.(C) No.4886 of 2010, which includes the private opposite parties in the other two writ applications are the applicants before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in a number of Original Applica¬tions. The said Original Applications have been filed challenging the action of the OPSC in declaring the results of the Orissa Civil Service (Main) Examination, 2006 in arbitrary and perfunc¬tory manner, and thereby depriving some of the candidates includ¬ing the applicants to be issued with call letters for appearing at the viva voce test. The relief sought for and interim relief prayed for since identical in nature in all the original applica¬tions, such reliefs as have been made in one of the Original Applications, i.e., O.A. No.218 (C) of 2010, are quote das here¬under :- “Relief sought for :- The Respondent No.2 be directed to relax the qualifying marks and to fix one qualifying mark for all the categories of candidates like previous years. The present applicants may be declared to have qualified so as to be considered on merit for the post pursuant to the Advertisement No.8 of 2006-07 under Annexure-1.” Interim Relief, if prayed for :- The Respondent No.2 be directed not to hold the Personality Test, i.e. Viva Voce from 15.2.2010 and ultimately direct that no further action be taken pursuant to the advertisement No.8/2000-07 till disposal of the original application.” 5. While hearing the interim application of the appli¬cants, the Tribunal by its order dated 26.2.2010 observed thus :- “Considering the submissions made by the learned counsel for both the parties, we are of the considered view that since only two members have been appointed by the State Government so far as O.P.S.C. is concerned and out of them one Member has been nominated to act as Chairman, the O.P.S.C. is not complete in terms of the statute. The so-called rules, copy of which have been supplied by Mr. B.K. Das, learned counsel appearing for the O.P.S.C. in Court today, also indicate that the proceeding of the Commission shall not be invalidated by reasons of any vacancy in the Office of the Chairman or any Member. That clearly indicates that all other Members, i.e. out of total five, minimum four should be there. It cannot be accepted that even in absence of more than one Member, all the business of the Commission can be conducted by a single Member, even if others have not been ap¬pointed till date. Rule 3 provides if there are Chairman and other Members and somebody is absent on a particular date, that will not be the reason to say that the quorum for the meeting is not complete. Even though, this is not a rule framed by the State Govt. as stated by Mr. B.K. Dash, since it has been formulated by the Chairman, O.P.S.C. and approved by the State Government, it cannot be accepted as a rule framed under Article-309 of the Constitution of India or in accordance with the statutory provi¬sions. In view of the above, at this stage, in our considered view, it will be just and proper to direct the O.P.S.C. not to proceed with the viva voce test which is being conducted pursuant to the advertisement as at Annexure-1 any further, till a final decision is taken in the matter. In view of the above, at this stage, in our considered view, it will be just and proper to direct the O.P.S.C. not to proceed with the viva voce test which is being conducted pursuant to the advertisement as at Annexure-1 any further, till a final decision is taken in the matter. Accordingly, O.P.S.C. is directed not to proceed with the selection of candidates to be appointed pursuant to the advertisement No.8 of 2006-2007 which was published in Nijukti Khabar dtd. 14.08.2006. 6. The fact, which is uncontroverted, is that the examina¬tion in question, i.e. Orissa Civil Service Examination, is of the year 2006 and this was the subject matter of various litigation before the Tribunal as well as before this Court. Ultimately, this Court directed for fresh examination and there¬fore, the examination was conducted and on the basis of the result of the Preliminary Examination the Main Examination was conducted and the viva vice test was to be conducted. 7. According to Mr. Sanjit Mohanty, learned senior counsel for the OPSC, the opposite parties, who were applicants before the Tribunal, are all unsuccessful candidates and since they were not called to the viva voce test, they approached the Tribunal for relaxation of the qualifying marks so that their papers can be evaluated and after evaluation of the papers, if they will be found qualified, they can be called to the viva voce test. He further submits that a large number of candidates were called to the viva voce test and after the interim order was passed at the instance of the unsuccessful candidates, the futures of the successful candidates are at stake. He also submits that there is no cause of action for the applicants to file the Original Appli¬cations and the interim relief granted by the Tribunal is beyond the scope and ambit of the prayer made in the Original Applica¬tions as indicated above. There was also no prayer to declare that the constitution of the Commission was not complete for which the interview should be declared null and void. This being so, the impugned interim order of stay should not have been passed. 8. Mr. Jagannath Patnaik, learned senior counsel for the petitioners in W.P.(C) No.4635 of 2010, submits that there is no occasion for the Tribunal to come to a conclusion, as indicated in the foregoing paragraph. This being so, the impugned interim order of stay should not have been passed. 8. Mr. Jagannath Patnaik, learned senior counsel for the petitioners in W.P.(C) No.4635 of 2010, submits that there is no occasion for the Tribunal to come to a conclusion, as indicated in the foregoing paragraph. His further argument is that the Original Applications before the Tribunal filed by some of the unsuccessful candidates should not have been entertained by the Tribunal and that too the interim order staying the entire proc¬ess of interview is totally illegal and has been passed by the Tribunal without application of mind. According to him, there is no occasion for framing Rule under Article 309 of the Constitu¬tion of India as interpreted by the Tribunal. 9. Mr. N.C. Panigrahi, learned senior counsel for the O.P.5, in W.P.(C) No.4635 of 2010, who has entered appearance through caveat, submits that the opposite parties are within their right to approach the Tribunal as their other answer papers have not been evaluated, for which the Tribunal is correct in passing the interim order pending disposal of the Original Appli¬cations because in the event the applicants before the Tribunal succeed, ultimately, they will not get any relief. 10. Mr. B. Routray, learned senior counsel appearing for the private opposite parties in W.P.(C) No.4826 of 2010, submits that the writ application is not maintainable at the behest of the present petitioners as all of them were not parties before the Tribunal. Even though some of the petitioners were parties before the Tribunal, instead of approaching the Tribunal for variation or vacation of the interim order, they have directly rushed to this Court, for which the writ applications should be dismissed. He further draws our attention to the fact that there are defects in the question papers as in one set of question papers, the candidates were directed to write essay in 100 words and in another set of question papers, the candidates were directed to write essay in 1000 words. 11. We have also heard Mr. R.K. Rath, learned senior coun¬sel for the petitioners in W.P.(C) No.4886 of 2010, Mr. J.K. Rath and Mr. A.K. Mishra, learned senior counsel for the interveners. 12. The undisputed fact is that in the midst of the viva voce test, all the Original Applications were filed before the Tribunal. 13. 11. We have also heard Mr. R.K. Rath, learned senior coun¬sel for the petitioners in W.P.(C) No.4886 of 2010, Mr. J.K. Rath and Mr. A.K. Mishra, learned senior counsel for the interveners. 12. The undisputed fact is that in the midst of the viva voce test, all the Original Applications were filed before the Tribunal. 13. With regard to the maintainability of the writ applica¬tion filed by the petitioners, who were not parties before the Tribunal, law is well settled that even if the petitioners were not parties to the proceeding before the Court below, if they are actually aggrieved by the order of the Court below, they can very well approach the Court under Article 226 of the Constitution of India. However, it is the present private opposite parties, who are the applicants before the Tribunal, have not impleaded the present petitioners as parties before the Tribunal. So it can be said that the applicants before the Tribunal have not come to Court in clean hands by not impleading candidates in the Original Applications, who have ultimately been aggrieved by the order of the Tribunal. So the submission of the private opposite parties that the writ applications are not maintainable is not sustainable. Even otherwise, the O.P.S.C.’s writ petition is also being heard analogously. 14. Now let us go to the question whether the Tribunal is justified in passing the order as indicated above. In the Origi¬nal Application, annexed as Annexure-2 to W.P.(C) 4635 of 2010, there is no prayer in regard to constitution of the Commission. Nowhere in the body of the Original Application (Annexure-2) also, the constitution of the Commission is under challenge. As it appears, the question of constitution of the Commission is developed by the learned counsel for the applicants before the Tribunal, even though there is no pleading to that effect. Howev¬er, the Tribunal interpreted Regulation-3 of the Orissa Public Service Commission (Conditions of Service) Regulations, 1952 at the conclusive paragraph, which has been quoted above. Further, the observation of the Tribunal that the rules and regulations of the proceeding of the OPSC, as evolved for the purpose of regu¬lating the proceedings, are not the regulations under Article 309 of the Constitution of India. Further, the observation of the Tribunal that the rules and regulations of the proceeding of the OPSC, as evolved for the purpose of regu¬lating the proceedings, are not the regulations under Article 309 of the Constitution of India. So far as grant of interim order is concerned, we are of the view that the Tribunal while considering the interim application should have kept in mind the time tested principles of prima-facie case, balance of convenience and irrep¬arable loss. 15. Here the applicants before the Tribunal were the unsuc¬cessful candidates, who did not qualify for any reason whatsoev¬er. If their prayer is to relax the qualifying marks and to declare them to be qualified, the far-fetching consequence of that relief should be dealt with while deciding the Original Application and what the applicants would get if they succeed is that their other answer papers are to be evaluated, and if they get the pass mark in the papers evaluated, they will be called to the viva voce test. For a very few applicants, who have not succeeded in the examination and with a prayer of this na¬ture, they now succeeded in getting an interim order, which is not only irregular, but the Tribunal while passing the order has not taken into consideration the fate of a large number of candi¬dates whose viva voce test has been stalled at the midst. The consideration of the Tribunal should have been whether by non-grant of the interim order the ends of justice would be defeated. Here there is no such case. In our considered opinion, the ends of justice would be defeated if the interim order is allowed to continue. 16. Now, with this we would have ended, but from the inter¬im order, we find that the Tribunal has touched the merits of the case while passing the interim order and fallen into a grave error in interpreting the provision of Regulation-3. So we think it proper to give a clear interpretation of Regulation-3, made under the Orissa Public Service Commission (Condition of Service) Regulations, 1952. So we think it proper to give a clear interpretation of Regulation-3, made under the Orissa Public Service Commission (Condition of Service) Regulations, 1952. As we find, at the time of passing the order, only two members were there in the O.P.S.C. and the Tribunal observed that “it cannot be accepted that even in absence of more than one Member, all the business of the Commission can be con¬ducted by a single Member, even if others have not been appointed till date.” Regulation-3 of the 1952 Regulations provides as follows :- “3. The Commission shall consist of a Chairman and five other Members : Provided that the proceedings of the Commission shall not be invalidated by any vacancy in the office of a Member.” The word ‘any’ mentioned in Regulation-3, according to 6th Edition of Black’s Law Dictionary, can be read as : “Any” does not necessarily mean only one person, but may have reference to more than one or to many. Doherty v. King Tex, Civ. App., 183 S.W.2d 1004, 1007.” In this respect, we may refer to Section-13 (2) of the Orissa General Clauses Act, 1937. “13. Gender and number :- xxx “(2) words in the singular shall include the plural and vice versa” 17. This being the position, the finding of the Tribunal in the impugned order that the O.P.S.C. is not complete and in the absence of more than one Member, business cannot be transacted, is fallacious and erroneous. That apart, learned counsel for the O.P.S.C. submitted that the Chairman of the O.P.S.C. has already been appointed and joined. However, we are not inclined to deal with the matter any further as it may touch the merit of the Original Applications, which are pending before the Tribunal. 18. In view of the above, the interim order of the Tribunal dated 26.2.2010 passed in O.A. No.218 (C) of 2010 and batch of Original Applications is set aside. The O.P.S.C. is directed to proceed with the interview by giving fresh notice to the rest of the successful candidates, who have not been interviewed. All the writ applications are accordingly disposed of. B.K. NAYAK, J. I agree. Application disposed of.