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2017 DIGILAW 1102 (JHR)

Sudhir v. Divisional Commissioner

2017-07-12

PRAMATH PATNAIK

body2017
JUDGMENT Pramath Patnaik, J. – In the instant writ petition, the petitioner has initially prayed for quashing part of the advertisement dated 13.04.2008 (as contained in Annexure-10) so far as it relates to inviting applications for the post of Dy. Director (Admn.) shown at Serial No. 3 under clinical positions and the petitioner has further prayed for direction upon the respondents to issue appointment letter for the post of Dy. Director (Admn.) RINPAS. 2. The brief facts of the case is that in pursuance to an advertisement issued by Director, RINPAS (Respondent no. 2) inviting applications for various posts advertised therein for faculty position and clinical/Administrative position, the petitioner having requisite qualifications applied for the post of Dy. Director (Admn.) against the aforesaid advertisement and offered his candidature on the said posts. The candidature of the petitioner was accepted by the Respondent no. 2 and an interview letter dated 16.12.2006 was issued to the petitioner calling upon him to appear before Selection Sub-committee on 10.01.2007 with the original certificate, mark-sheet and testimonial of education qualification, experience certificate, proof of date of birth etc. for verification at the time of interview. The petitioner appeared in the interview before the Selection Committee and all original testimonial and certificates as required were verified and cleared without any objection. After awaiting of his appointment, the petitioner represented before the Director (respondent no. 2) requesting for issuance of appointment letter in his favour. Acting upon the positive assurance by the then Director, RINPAS, the petitioner submitted his resignation before his employer-Ram Krishna Build-well Pvt. Ltd. from the post of Manager, Legal and Administration and the employer accepted the resignation with immediate effect vide accepting letter dated 12.10.2007. But surprisingly, a fresh advertisement bearing dated 13.04.2008 has been issued by the Director-cum-CEO, RINPAS inviting application for various posts for faculty position and clinical position including the post of Dy. Director (Admn.) vide Annexure-10 to the writ petition and the last date for applying for the post was 20.05.2008 as per the aforesaid advertisement. The petitioner also came to know that no appointment letter was issued to him and Dr. B.C. Mishra was allowed to work on the said post on extension basis from time to time which is against law and procedure. By the action of the respondents by not issuing the appointment letter and further going for fresh advertisement to fill up vacancy of Dy. B.C. Mishra was allowed to work on the said post on extension basis from time to time which is against law and procedure. By the action of the respondents by not issuing the appointment letter and further going for fresh advertisement to fill up vacancy of Dy. Director (Admn.) RINPAS vide Annexure-10 to the writ petition, the petitioner left with no other alternative remedy, has knocked the doors of this Court under Article 226 of the Constitution of India for redressal of his grievance. 3. Learned counsel for the petitioner has vehemently submitted that the action of the respondent in not issuing the appointment letter in favour of the petitioner for the post of Deputy Director (Admn.) amounts to arbitrary exercise of power. The action of the respondent is actuated by mala fide and oblique motive. Learned counsel for the petitioner further submits that the respondent no. 2 ought to have kept his promises/assurance given to petitioner pursuant to which he submitted his resignation before his application which was accepted and thereafter, the petitioner was not given appointment which has rendered him jobless thereafter. The action of the respondent in going from the fresh advertisement calling for application for the post of Deputy Director (Admn.), after the selection has resulted in gross injustice to petitioner. 4. Counter-affidavit has been filed by respondent no. 2 controverting the averments made in the writ application. In the counter-affidavit, it has been submitted that the first part of advertisement vide Annexure-10 so far it relates to inviting application for the post of Dy. Director (Admn.) is concerned, it has been submitted that the said advertisement has been cancelled by notice dated 17.04.2008 as published in daily newspaper. So far as the direction upon the respondents to issue appointment letter in favour of petitioner is concerned, it has been submitted that there is no question of issuing letter of appointment in favour of petitioner as he has not been selected for the post of Deputy Director (Admn.), RINPAS in response to Advertisement as contained in Annexure-2 and the fact can be evident from the minutes of the Selection Sub-Committee meeting held on 10.01.2007 as evident from Annexure-A to the counter-affidavit. It has further been submitted that from Annexure-A it is evident that the Selection Committee has found one Sri B.C. Mishra suitable and fit for the post and accordingly recommended his name for appointment, and therefore, there was no occasion or reason for issuing appointment letter in favour of petitioner as the number of post advertised was only one and further the petitioner was not found fit and suitable by the Selection Committee. It has further been submitted that the appointment on the post of Dy. Director (Admn.) in response to advertisement was made after following all the procedure viz. inviting application, interview etc. and therefore, it cannot be said to be illegal. 5. A rejoinder on behalf of the petitioner has been filed controverting the submissions made in the counter-affidavit. It has been submitted in the counter-affidavit that from bare perusal of the aforesaid minutes of meeting dated 10.01.2007, it shall be clear that the petitioner was kept as waiting-1 and hence the statement of respondent no. 2 that the petitioner has not been selected is totally false and misleading. It has been submitted that the Management Committee in its 36th M.C. Meeting held on 12.01.2007 decided that Dr. B. C. Mishra should not be appointed since he is a retired person and it was also decided that the next person in the wait list W-1 Mr. Sudhir should be appointed on contract as per the terms and conditions of the advertisement. The petitioner obtained a copy of the minutes of the aforesaid 36th meeting under the Right to Information Act, 2005 as evident from Annexure-11 to the rejoinder affidavit. It has further been submitted that due to lot of glaring irregularities committed in the appointment process and the favoritism has been done to Dr. B. C. Mishra, the petitioner has been victimized. 6. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has not been able to make out a case for interference due to the reasons stated here-in-below: (I) In pursuance to advertisement for appointment to the post of Deputy Director (Administration), one B.C. Mishra was finally recommended for the said post to which he was earlier working on contractual basis. Hence he was allowed to continue further in terms of advertisement in which it has been categorically stated that appointment will be on contractual basis. The Managing Committee in its 38th meeting took decision to select Mr. B.C. Mishra for the said post and it is evident from the minutes of the said meeting that petitioner did not submit experience certificate along with application form and also during the interview and before issuance of appointment letter though the office had asked the petitioner to submit experience certificate as was mentioned in application form. However, there is discrepancy in experience as claimed and certificate submitted by the petitioner, therefore, it is apparent that the petitioner was never qualified and does not fulfil the requisite requirement in terms of advertisement as contained in Annexure-2. It is settled position of law that inclusion of the name of the petitioner in the panel does not confer any indefeasible right for appointment. (II) As per Annexure-2 to the writ petition, advertisement was issued on 21.08.2006 in daily newspaper ''Times of India'' and panel was prepared on 10.01.2007 and the panel lapsed after expiry of one year and it is established practice law that validity or life of panel is one year. (III) During pendency of the writ application as has been disclosed in the supplementary counter affidavit filed on behalf of the respondents dated 22.12.2009, Mr. Meghu Baraik Jis working as a Deputy Director (Administration) on deputation vide notification dated 19.09.2009, is also a necessary party and on that score writ petition is also not maintainable for non-joinder of necessary party. 7. In view of the reasons stated in the foregoing paragraphs, the writ petition sans merit is dismissed.