D. G. & I. G. of Police, Fire Services, Odisha v. Jyotish Chandra Muduli
2014-07-17
BISWANATH RATH, I.MAHANTY
body2014
DigiLaw.ai
JUDGMENT Biswanath Rath, J.: The petitioners by filing the writ petition have called for the legality, propriety and correctness of the judgment / order dated 05.11.2013 and 25.02.2014 passed by State Administrative Tribunal, Bhubaneswar in Original Application No.3037 of 2013 and R.P. No.48 of 2014 arising therefrom. 2. The facts involved in the case is that the opposite party as applicant filed the Original Application 3037 of 2013 inter alia claiming therein that he was an applicant for the post of ‘Fireman’ under the administrative control of the Chief Fire Officer, Odisha Buxi Bazar, Cuttack (respondent no.2 /petitioner no.2) following an advertisement vide Annexure-1 in the Original Application. The applicant claimed that as per the conditions in the Odisha Fire Services (Method of Recruitment for Fireman) Order, 2006, the candidates belonging to SEBC category coming within the height of 175 cm to 179 cm will be awarded with 16 marks whereas candidates belonging to SEBC category coming within the height of 179 cm to 184 cm will be awarded 18 marks. It is alleged by the applicant before the Tribunal that during the Test Measurement of height of the candidates, he was found to be having height of 178.5 cm and consequently he was awarded with 16 marks. It is further submitted that in the Recruitment Board there are five members under the Chairmanship of I.G. of Police, Fire Services, Odisha and C.D.M.O. of the concerned district as one of the members in the recruitment board. Since he was an applicant for Bhubaneswar Range, the applicant claimed that the C.D.M.O., Khurda is one of the members of the Selection Board. The applicant further alleged before the Tribunal that in the physical measurement test though he was found to be 179.5 cm but, his height was wrongly recorded in the admit card as 178.5 cm. Though the applicant immediately objected and requested to correct the height measurement and claimed for being awarded the wrong marks, his request was not cared for and thus he was constrained to file a representation before the petitioner no.1 D.G. & I.G. of Police, Fire Services, Odisha, Cuttack for necessary corrections. His request remained unheeded. In the pleadings before the Tribunal, he has further claimed that the Odisha Fire Services (Method of Recruitment of Fireman) Order, 2006, which governs the recruitment of fireman, prescribes at Clause-11.2.1., the marks for height for respective categories of candidates.
His request remained unheeded. In the pleadings before the Tribunal, he has further claimed that the Odisha Fire Services (Method of Recruitment of Fireman) Order, 2006, which governs the recruitment of fireman, prescribes at Clause-11.2.1., the marks for height for respective categories of candidates. It prescribes height above 179 cm -184 cm is entitled to 18 marks. It is on the basis of this provision the applicant claimed that since his height was 179.5 cm, he is entitled to 18 marks but by recording his height to be 178.5 cm he has been awarded less marks. The applicant, i.e., the present opposite party further claimed that had his height been taken to be 179.5 cm, he would have got total marks of 53 as against 51, awarded to him. With the aforesaid pleading, by filing the Original Application referred to above the applicant in the Tribunal claimed the following reliefs before the learned Tribunal. “7. RELIEF SOUGHT FOR: In view of the facts stated above in Para-6, the applicant prays for following relief(s): i. To direct the respondents to remeasure the height of applicant. ii. To direct the respondents to award 18 marks for the height of the applicant by correcting the tabulation sheet his height as 179.5 cm instead of 178.5. iii. To direct the respondents to appoint the applicant as Fireman if he comes within the zone of selection after adding two marks for his height. iv. And pass such other order/orders as may be deemed fit and proper for the interest of justice.” 3. During course of hearing, modifying his prayer made in the Original Application the petitioner / applicant submitted to the Tribunal for a direction to the Chief District Medical Officer, Khurda to measure the height of the applicant in presence of the Fire Officer, Odisha, Buxi Bazar, Cuttack or if this Tribunal so decides a direction be given to Chief District Medical Officer, Cuttack to measure the height of the applicant in presence of Respondent no.2 therein and if it would be found that the applicant’s height is 179.5 cm., a direction be issued to respondent authority to correct the height measurement of the applicant reflecting 179.5 cm.
and accordingly after awarding 18 marks, final result of the petitioner be published and on the basis of final result if the applicant will come within the zone of consideration for appointment in the post of Fireman, necessary appointment order be issued. The respondents-present petitioners on their appearance, through their counsel orally submitted that they have no serious objection if the Original Application is disposed of on the basis of submissions made by learned counsel for the applicant without observing anything or merits of the case. 4. Considering the submissions made by both the parties, the Tribunal disposed of the Original Application by order dated 05.11.2013 as appearing at Annexure-1 with a direction that the applicant is to appear before the respondent no.2 / Fire Officer, Odisha, Buxi Bazar, Cuttack for re-measurement of his height. After the appearance of the applicant before the Fire Officer, he shall do the needful for measurement of the applicant by the C.D.M.O., Cuttack in his presence and if the report of the C.D.M.O., Cuttack will come to the effect that the applicant having height of 179.5 cm then to award appropriate marks in favour of the applicant and after such addition, if the applicant comes within the zone of consideration to issue appointment order in favour of the applicant. The Tribunal further directed the respondents to complete the exercise within a period of three weeks and till such exercise is over, the Tribunal also directed the State respondent to keep one post of ‘Fireman’ vacant to accommodate the petitioner in the event of his success. 5. It is apt to mention here that the final order in Original Application No.3037 of 2013 was passed on 05.11.2013 that too on the basis of no serious objection by the State-respondent to the asking of the applicant / opposite party. This order was not challenged by any party in the higher forum, rather the direction in the said order was worked out in the meanwhile by issuing letter dated 10.12.2013 vide Annexure-6 to the present writ petition directing therein the Chief Medical Officer-opposite party no.2 asking him to direct the appellant / opposite party to appear before the A.D.M.O., Cuttack at City Hospital Campus, Cuttack on 13.12.2013 at 11.00 A.M. for measurement of his height following the direction of the Orissa Administrative Tribunal, Bhubaneswar.
A copy of the said order was also forwarded to the applicant for his information and necessary action at his end. Following the above direction, a fresh measurement of the height of the applicant was also undertaken in the office of A.D.M.O., City Hospital, Cuttack on 13.12.2013 as appearing at Annexure-7 to the writ petition, where the height of the applicant was found to be 178.5 cm. A copy of the proceeding of the Recruitment Board held in the office of the A.D.M.O., City Hospital, Cuttack on 13.12.2013 is available at Annexure-7 of the writ petition. In another move for reasons indicated therein the Chief District Medical Officer, Cuttack, in a further development of the matter, issued a letter on 23.12.2013 while expressing his helplessness to give an opinion as single individual, the C.D.M.O., Cuttack by this letter, asked the Chief Fire Officer to make necessary arrangement for appearance of the applicant before the District Medical Board at 01.01.2014 in his Chamber at 11.00 A.M. for re-measurement of his height. Following the above direction the height of the applicant was once again measured and the Board constituted for the purpose, found the height of the applicant as 182 cm, as clearly appearing from the proceeding dated 01.01.2014 appearing at Annexure-9 of the writ petition. After the completion of the re-measurement of the height of the applicant, following the direction of the Tribunal, the applicant, who was directed to proceed for necessary correction in the marks of the applicant in the event of his height, is found to be more than 179 cm. instead of issuing necessary appointment orders in favour of the applicant-respondent in the Tribunal, at this stage, preferred to file a Review petition before the Tribunal on 10.02.2013 registered as R.P. 48 of 2014 seeking the following relief (s):- “In the circumstances stated above, it is humbly prayed that this Hon’ble Tribunal be pleased to allow this application and further be pleased to recall the order dated 05.11.2013 and pass necessary direction to accept the decision of the Board taken in regard to measurement to height. And for the said act of kindness the petitioners/Respondents as in duty bound shall ever pray.” 6.
And for the said act of kindness the petitioners/Respondents as in duty bound shall ever pray.” 6. It is surprised to note here that even though there was no serious objection by the State-respondent to the asking of the present opposite party / applicant before the Administrative Tribunal and the order of the Tribunal dated 05.11.2013 has been worked out to a great extent and after such following action established that the height of the applicant is 182 cm as found by the Medical Board constituted at the instance of the C.D.M.O., this development has been deliberately suppressed by the applicant in the Review petition (R.P. No.48 of 2014). On hearing the review petition registered as R.P. No.48 of 2014, the Tribunal by order dated 25.02.2014 was pleased to reject the review petition on two counts, firstly, since the direction of the Tribunal dated 05.11.2013 relating to the re-measurement of the height of the applicant by the C.D.M.O., Cuttack in presence of the Chief Fire Officer, Odisha, Cuttack has already been complied and in the result of such compliance, a further report on the re-measurement of the height of the applicant has already come into existence establishing the height of the applicant to be 182 cm. Secondly, since the review petition was grossly barred by time, as it was filed on 13.02.2014, i.e., three months and eight days after the order sought to be reviewed, 05.11.2013 was passed in absence of the condonation of delay application. 7. Being aggrieved by the order passed in the review petition, the respondents before the Tribunal, have approached this Hon’ble Court by filing the present writ petition praying for quashing of the judgment / orders dated 05.11.2013 and 25.02.2014 as passed in Original Application No.3037(c) of 2013 and R.P. No.48 of 2014 (Arising out of O.A. No.3037 (c) of 2013) under Annexure-1 series. On a bare perusal of the aforesaid facts narrated above, it appears that the petitioners had not raised any objection to the asking of the opposite party / applicant in the Tribunal, they have even rightly not challenged the judgment / order of the Tribunal dated 05.11.2013 at appropriate level as they were legally estoped. On the other hand, they proceeded for implementation of the direction of the Tribunal dated 05.11.2013.
On the other hand, they proceeded for implementation of the direction of the Tribunal dated 05.11.2013. In the process of such implementation, the main direction contained in the Tribunal’s order has been worked out yielding a report by the competent authority finding that the height of the applicant as 182 cm as clearly appearing from Annexure-9 goes in favour of the opposite party. The re-measurement having been done by a competent authority, we do not find any flaw in the same. We further observe that a party has no right to challenge an order merely because giving effect to it has yielded a result against it which is established from the narrations made hereinabove. We deprecate such behavior from a party like State Government, who should behave like a model employer. It is needless to mention here that the rest direction of the Tribunal is all consequential, depending on the fresh measurement report. Result of re-measurement having gone in favour of the opposite party / applicant, gives no right in favour of the petitioner to challenge the same, there is no scope for interfering in the matter at this stage. Further since the review petition was filed in clear suppression of the developments taken place in between 05.11.2013 up to 13.02.2014, the petitioners did not move the review petition with clean hand. And further, since the direction of the Tribunal in the Original Application is already worked out, the attempt of State for review was to render no useful purpose and under the circumstances, there is no scope for this Court for finding any fault either in the order passed in the Original Application or in the Review Petition No.48 of 2014. 8. While affirming the orders vide Annexure-1 series, we do not find any merit in the writ petition which is accordingly dismissed. Consequently, the Misc. Case is also dismissed. However, there shall be no order as to costs. I agree.