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2017 DIGILAW 1407 (ORI)

Bhagabat Prasad Barik v. Chairman, Bharat Petroleum Corporation Ltd. , Mumbai

2017-12-06

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the following prayers have been made: (i) Why the result of the recruitment test and select list shall not be published. (ii) Why the appointment letter of the opp. parties No.4 to 7 shall not be quashed in the post of Operator-V (Field). (iii) Why the appointment letter shall not be issued in favour of the candidates in accordance with the select list of the recruitment test, and if the petitioners secured good ranks in the select list then the appointment letter be issued in favour of them. 2. The brief facts of the case of the petitioners as per pleading made by them in this writ petition is that the petitioners have passed the High School Certificate Examination and registered their names in the District Employment Exchange, Balasore. The petitioners no.2 and 3 belong to Scheduled Caste and the petitioner no.1 belongs to Other Backward Caste. The opposite party no.2 vide its letter No. EMP(ED/OP-V(F)/2000 dated 17.1.2000 place his requisition to the District Employment Officer, Balasore to sponsor sufficient number of eligible candidates to fill up 6 numbers of Operator-V (Field) to be posted at Balasore Depot, out of which, 4 posts were meant for General candidates, 1 post reserved for S.C. Category and 1 post reserved for S.T. Category. The educational qualification prescribed for the post was Class-VII passed. The said opposite party also invited applications from the eligible made candidates through the advertisement in the daily newspaper “The Samaj” to fill up the said posts. In response to the advertisement, these petitioners applied for the said post and accordingly their candidatures were scrutinized, but they were allowed to sit in the written test held on 15.10.2000 in which they were came out successful in the written test and accordingly interview letters were issued directing them to appear at the interview on 9.1.2003 and 10.1.2003. The petitioners had participated in the interview, but the result of the recruitment test was not published. The appointment letters were issued on 28.4.2003 in favour of the opposite parties no.4 to 7, who had not applied for the posts nor sponsored by the employment exchange and even they had not appeared in the written test held on 15.10.2000. 3. The petitioners had participated in the interview, but the result of the recruitment test was not published. The appointment letters were issued on 28.4.2003 in favour of the opposite parties no.4 to 7, who had not applied for the posts nor sponsored by the employment exchange and even they had not appeared in the written test held on 15.10.2000. 3. According to the petitioners, the opposite party no.2 has filled up 4 posts illegally and the rest 2 posts are still lying vacant in the Balasore Depot. The petitioners have approached this Court in these circumstances by assailing the action of the opposite parties on the ground of settled principle of law that whenever appointment is made basing on the recruitment test it should be strictly on the basis of merit list and the result of the recruitment test should be published in the office notice board. 4. Opposite parties no.1 to 3 have filed counter affidavit stating inter alia therein that the petitioners, before filing this writ petition before this Court, had filed a Civil Suit bearing No.O.S. No.192/03 in the court of the Civil Judge (Junior Division), Balasore with similar prayers along with Misc. Case No.99/2003 with a prayer for temporary injunction against these opposite parties for a direction not to appoint any land loser persons as Operator-V On the appearance of these opposite parties in the above Misc. Case and filing of their show cause disclosing the true position and circumstances of the case, the petitioners, who presuming the fact that they have no case to succeed, withdrawn the above Suit and the Misc. Case and thereafter, this writ petition has been filed. Hence, the same cannot be entertained in its extraordinary jurisdiction conferred under Article 226 of the Constitution of India. It has been stated therein that after selecting the appropriate forum to ventilate their grievance, if any, the petitioners are abandoned the same and has taken shelter under the extraordinary jurisdiction of this Court which is ex facie a major design to harsh these opposite parties to such litigation. On facts, it has been stated that the Depot at Balasore was undertaken from 1.4.2002 which was commissioned from July, 2002. The entire Depot operation was given on contract to a job handling Contractor and he executed the entire handling operation through his own men and machineries. On facts, it has been stated that the Depot at Balasore was undertaken from 1.4.2002 which was commissioned from July, 2002. The entire Depot operation was given on contract to a job handling Contractor and he executed the entire handling operation through his own men and machineries. The opposite party-Corporation has decided to handle the Depot operation directly and as such, a recruitment process was initiated and for that purpose the recruitment was initiated for fulfilling the post of Operators and to fill up the said post, a notification was issued on 17.1.2000 to fill up the vacancies of the post of Operator-V (Field) to the District Employment Officer, Balasore with a request to furnish the list of eligible candidates in order to fill up 6 numbers of such posts comprising of 4 General Category, 1 S.C. Category and 1 S.T. Category. Pursuant to such requisitions, the Employment Officer, Balasore; Employment Officer, Jaleswar; and Employment Officer, Nilagiri sponsored candidates as per list submitted by them to the opposite party-Corporation on 26.2.2000, 2.3.2000 and 6.3.2000, respectively. The petitioners no.2 and 3 had filed writ petition bearing O.J.C. Nos.4074 of 2000 and in Misc. Case No.4342 of 2000, arising out of the above writ application, this Court has passed an interim order directing the authorities to permit the petitioners to participate in the interview for appointment to the post of Operator-V, but the result of the interview shall not be published till 4.7.2000. Accordingly, the opposite party-Corporation invited the above two candidates to appear in the written test for the post of Operator-V (Field), but the result was not published till 4.7.2000. The said vacancy has also been notified in the local newspaper of Balasore, namely, “Sambad”. The written test for all eligible candidates whose applications had been received from all the above sources was held on 15.10.2000. It has been submitted therein that during the said period, the local people were creating disturbances causing serious law and order problem demanding employment to the Project Affected People. Pursuant to which, a letter dated 12.9.2000 was received by these opposite parties from the District Collector, Balasore intimating that there were Project Affected People at Balasore and as such, job opportunities should be given to them, an application dated 21.8.2000 was also enclosed received from so-called Project Affected People for further necessary action. Pursuant to which, a letter dated 12.9.2000 was received by these opposite parties from the District Collector, Balasore intimating that there were Project Affected People at Balasore and as such, job opportunities should be given to them, an application dated 21.8.2000 was also enclosed received from so-called Project Affected People for further necessary action. Thereafter, the Collector, Balasore after sometime has furnished list of the names of the Project Affected People, the office of the District Collector, has furnished names of the applicants, out of which, 48 candidates are found eligible to be called for in the written test. Subsequently, the number reduced to 47 candidates. Hence, they were called upon to participate in the written test and accordingly they had participated in the written test. Out of 47 eligible candidates, 30 Project Affected People, those who qualified in the written test held on 23.11.2002 and 41 candidates who had qualified in the written test held on 15.10.2000, were called to appear in the final interview to be conducted on 9.1.2003 and 10.1.2003, total comes to 71 candidates. Out of which, 60 candidates had appeared in the said interview. After the final selection process, the opposite parties no.4 to 7 having found to be suitable for selection for the post of Operator-V and after following due process of their medical verification etc., they have joined their post of Operator-V w.e.f. 2.5.2003. It has been stated that the petitioners have not been selected in the recruitment process and as such, they have not been given appointment in the said post. Learned counsel appearing for the opposite party-Corporation submits that there is no violation of any procedure in making selection, rather the chance has been given to the petitioners to participate in the selection process. They although qualified in the written test, but on final selection, they have not been made to be successful and accordingly, they have not been selected. The petitioners have filed this writ petition praying therein to publish the final result, as would be evident from prayer no.(i) to the writ petition. Since the result has been published, hence the prayer no.(i) made in the writ petition has become infructuous. The petitioners have filed this writ petition praying therein to publish the final result, as would be evident from prayer no.(i) to the writ petition. Since the result has been published, hence the prayer no.(i) made in the writ petition has become infructuous. He submits that so far as prayer no.(ii) is concerned, the petitioners cannot assailed the appointment of opposite parties no.4 to 7 for the reason that they have been selected on the basis of a selection procedure under the Project Affected Quota. He further submits that the original advertisement or the requisition does not stipulates that the candidates from the Project Affected Area will not be selected, rather the requisition has been made by the Corporation to the employment exchange to give the names of the eligible candidates for their consideration to be appointed as Operator-V as also the vacancies has been notified and thereafter, the requisition of Collector has also been entertained to consider the cases of the displaced persons whose lands have been acquired for the purpose of setting up Balasore Depot. Hence, applications have been considered, having received by the Corporation through three modes. First, through the Employment Exchange, second by way of the advertisement and third from the office of the Collector and thereafter, the applications submitted from office of the Collector has also been considered and they have been allowed to participate in the selection process. Hence, nothing illegality has been committed. He further submits that the cases of the petitioners have been considered, but they have not found to be successful and accordingly, they have not been selected. Hence, now they cannot assail the appointment of opposite parties no.4 to 7 on the principle that once having become declared unsuccessful in the selection process, they will seized to challenge the selection of other selectees. 5. The opposite parties no.4 to 7 have appeared through their counsel and filed affidavit inter alia therein it has been stated that they are the displaced persons and they have been allowed to participate in the regular selection process by asking them appear in the written test when they have been found to be successful, asked to appear in the interview in which also they have found to successful and only thereafter, they have been engaged. Learned counsel representing them submits that the applications received by the Corporation by way of Employment Exchange or through advertisement, the candidature of 30 candidates including the petitioners have been considered along with the opposite parties no.4 to 7, who belongs to displaced category and on comparative assessment, the candidature of the petitioners are not found to be suitable. Hence, not selected. As such, there is nothing illegality in the decision taken by the Corporation. He submits that the opposite parties no.4 to 7 since been appointed after following the due procedure and as such, it cannot be said to be a illegal appointment. He, while opposing the submission of the learned counsel for the petitioner, submits that petitioners should not be allowed by the Corporation to appear in the selection process which has been initiated way back in the year 2000, but this argument has got no substance for the reason that even the candidature of the petitioners no.2 and 3 have been considered in the light of the direction passed by this Court that was also after the process having been initiated of the petitioners and in midst of the selection process i.e. after issuance of advertisement and in course of the selection process when it has been done by the opposite party-Corporation, then considering their cases to scrutinize their candidature cannot be said to be illegal especially for the reason that they are the displaced persons and they have been participated in the selection process in which they have been found to be successful and accordingly selected. 6. Petitioners have filed rejoinder affidavit rebutting the stand taken by the Corporation by stating therein that the merit of the Project Affected People were not adjust for the common people of all competitators, but the separate written test was held on 23.11.2002 which was conducted after two years i.e. after 1st written test and the same was done at the behest of the order of the Collector only to accommodate them under the Rehabilitation Assistance Scheme and as such, their appointment cannot be said to be legal. 7. Learned counsel for the petitioners submits that once the selection process has started, the consideration of candidature of other candidates cannot be allowed to be considered in the midst of the selection process. 8. 7. Learned counsel for the petitioners submits that once the selection process has started, the consideration of candidature of other candidates cannot be allowed to be considered in the midst of the selection process. 8. Petitioners have filed a further affidavit reiterating the entire facts in which the opposite party-Corporation has stated in the counter affidavit. 9. Learned counsel for the petitioners has relied upon a judgment rendered by Patna High Court in the case of Rajeshwar Singh and Ors. –Vs.- State of Bihar and Ors., reported in AIR 1983 Pat 194 which relates to the maintainability of the writ petition after dismissal of Civil Suit as also the principle that once the selection process commenced, the rule of game cannot be allowed to be changed. 10. While, on the other hand, learned counsel appearing for the Corporation has relied upon a judgment rendered by Hon’ble the Apex Court in the case of Union of India and others -Vs.- S. Vinodh Kumar and others, reported in (2007) 8 SCC 100 . In order to substantiate his argument that the candidates taken part in the selection process knowingfully well the procedure laid down therein, cannot entitled to question the same. 11. Heard the learned counsel for the parties and on appreciation of their rival submission, the undisputed fact of this case is that the opposite parties no.1 to 3 had notified for the post of Operator-V (Field) 6 numbers making requisition to the District Employment Exchange, Balasore on 17.1.2000 to sponsor the names of eligible candidates of the 6 numbers of post. Pursuant to such requisition, the Employment Officer, Balasore; Employment Officer, Jaleswar; and Employment Officer, Nilagiri, sponsored names of the candidates as per the list submitted by them to the opposite party-Corporation on 26.2.2000, 2.3.2000, 6.3.2000, respectively. The said vacancies have also been notified in the local newspaper, namely, “The Samaj” on 21.6.2000. Petitioners, in pursuant to the said advertisement, had made applications and participated in the recruitment test held on 15.10.2000, in which, they have been declared successful and accordingly directed to appear in the interview stipulated to be held on 9.1.2003 and 10.1.2003. The petitioner no.2 and 3 when not allowed to participate in the selection process, had approached to this Court by filing writ petition being O.J.C. No.4074 of 2000 and Misc. The petitioner no.2 and 3 when not allowed to participate in the selection process, had approached to this Court by filing writ petition being O.J.C. No.4074 of 2000 and Misc. Case No.4342 of 2000 wherein by way of an ad interim measure, they have been to allowed to appear in the selection process with a direction not to publish the result. The opposite parties no.4 to 7 had not applied pursuant to the said advertisement or their names have also not been requisitioned by the employment exchange and as such, they had not appeared in the written test held on 15.10.2000. When the written test was concluded and result published, but before holding the interview, a requisition has been received from the office of the Collector, Balasore for consideration of case of the Project Affected People from whose possession the land were acquired for the purpose of establishing the project. The office of the Additional District Magistrate, Balasore has furnished the names of 81 applicants, out of which, 48 candidates were found to be eligible to call for written test. Subsequently, the number reduced to 47 candidates, who finally found to be eligible to call for the written test. Out of those 47 candidates, 41 candidates have been found to be successful in the written test. 12. It is admitted position that two written tests were conducted. One on 15.10.2000 in which 48 candidates had qualified and the other written test was conducted on 23.11.2002 in which 30 persons were qualified to be called for the final interview. In the final interview it was found by the committee that the opposite parties no.4 to 7 are suitable for selection to the post of Operator-V (Filed). Accordingly, the appointment letters have been issued in their favour on 2.5.2003 and accordingly appointment letters were issued asking them to join their duty by 2.5.2003 and in pursuant thereto, they have joined in the post of Operator-V (Field) on the said date. 13. The petitioner has filed this writ petition praying therein not to publish the result of the recruitment test and the select list, the appointment letters of the opposite parties no.4 to 7 be quashed and in consequence thereof, the appointment letters may be issued in their favour in accordance with the select list of the recruitment test. 14. 13. The petitioner has filed this writ petition praying therein not to publish the result of the recruitment test and the select list, the appointment letters of the opposite parties no.4 to 7 be quashed and in consequence thereof, the appointment letters may be issued in their favour in accordance with the select list of the recruitment test. 14. Learned counsel for the petitioners, in course of argument, has raised the ground that inclusion of the candidature of opposite parties no.4 to 7 is absolutely illegally, since they are not the applicants having been sent by employment exchange or through the direct advertisement, rather they have been made part of the selection process after written test has been concluded on 15.10.2000. The ground taken by the petitioner is that once the selection process starts, rule of the game cannot be changed. 15. While, on the other hand, learned counsel appearing for the opposite party-Corporation as also private opposite parties no.4 to 7 jointly have submitted that it is not an illegal appointment, rather they have been legally been appointed by allowing them to test their candidature by way of requisition made by the office of the Collector and accordingly, they have been allowed to participate in the written test in which they have qualified and subsequently they have participated in the interview and in the combined merit list, they have found to be more suitable in comparison to that of the petitioners and as such, they have selected. Hence, there is nothing illegal. 16. This Court, after appreciating the rival submissions of the parties and going across the factual aspects as quoted hereinabove, is of the view that there is no dispute in the settled position that once the game starts, the rule of game cannot be changed. But here in the instance case, it is to be seen as to whether the facts and circumstances of the case is coming under the fold of said settled proposition of law? 17. This Court, while coming across the factual aspect, has found that the applications have been accepted by the Corporation through three modes. But here in the instance case, it is to be seen as to whether the facts and circumstances of the case is coming under the fold of said settled proposition of law? 17. This Court, while coming across the factual aspect, has found that the applications have been accepted by the Corporation through three modes. First is from the concerned employment exchanges, second is the direct application under the advertisement under which the petitioners have applied and third from the office of the Collector, Balasore for consideration of their cases, since they belonged to Project Affected People, i.e., the land having acquired from their possession to settle the plant. So far as the first and second category candidates are concerned, they had participated in the interview held on 15.10.2000, although petitioners no.2 and 3 were not allowed to be participated in the selection process, but due to intervention of this Court, they have been allowed and accordingly, they have found to be successful in the written test held on 15.10.2000. After the result having been published of the written test held on 15.10.2000, due to the local disturbances made on behalf of the displaced persons to provide them employment under the provision of Rehabilitation Assistance Scheme floated by the State of Orissa to provide appointment to one of the dependent of the family from whose possession the land have been acquired under the provision of Land Acquisition Act. Hence, the Collector being the ultimate authority in this regard in the concerned district has made an application before the opposite party-Corporation also to consider their candidature so that they may also be considered and the position in accordance with law may be taken. In view thereof, list of 47 candidates has finally been found to be suitable to be participated in the written test out of 81 candidates. They have been allowed to participate in the written test and accordingly, they have been declared successfully. The opposite party-Corporation thereafter has directed the said candidates, who have been declared successful in the written test held on 15.10.2000 under the category of applicant sent through employment exchange or the applicant under the advertisement and from the list submitted from the office of the Collector of the Project Affected Area and all of them have jointly participated in the interview and thereafter, joint merit list was prepared by the Corporation. The Corporation, after making comparative assessment in the joint merit list, has found the candidature of opposite parties no.4 to 7 including the others to be more suitable on the basis of comparative assessment of merit position and selected them. Accordingly, they have engaged. The petitioner, at the time of participation of 47 candidates in the written test which has publicly notified, has not assailed the decision of the Corporation, rather they have kept awaiting for the decision of the selection committee and when they have found to be lower in the merit list and not selected by these reasons, then this writ petition has been filed. As such, the petitioners, after fully participating in the selection process knowing the fact consciously that the Project Affected People are being allowed to participate in the same selection process, have kept silent and waited for the final outcome of the selection process. Hence, after selection, it is not available for them to challenge the entire selection process, since the authority, by allowing the Project Affected People to be part of selection process, has considered their candidature which has been accepted by the petitioners without making any objection or without claiming any dispute in this regard before appropriate forum. However, the petitioner has raised the dispute before the competent court of civil jurisdiction by filing a suit, but the same has been withdrawn without seeking any liberty from the competent court of civil jurisdiction to assail the same before the appropriate forum. The petitioner although had relied on a judgment rendered by Hon’ble Patna High Court in this regard regarding maintainability of the writ petition even after withdrawal of the suit that position is not in dispute, but it is settled that every judgment is to be seen on the facts and circumstances of each and every case. The petitioner although had relied on a judgment rendered by Hon’ble Patna High Court in this regard regarding maintainability of the writ petition even after withdrawal of the suit that position is not in dispute, but it is settled that every judgment is to be seen on the facts and circumstances of each and every case. Here, in this case, the fact which has been gathered by this Court in the counter affidavit assigning the reason of withdrawal which is after appearance of the opposite parties and filing of show cause and as such, the facts leading in the case adjudicated by the Hon’ble Patna High Court was with respect to the withdrawal of the writ petition on the ground of non-payment of ad volorem court fee, which was not paid and in that circumstance, the Hon’ble Patna High Court has been pleased to hold that even without leave to institute a fresh suit, the writ petitioner will not be precluded from filing second writ petition. But here the fact is totally different, since the suit which has been filed by the petitioner before the court of Civil Judge (Junior Division), Balasore being O.S. No.192 of 2003 as also Misc. Case No.99 of 2003 in which a show cause has been filed and after receiving copy of the show cause, the suit has been sought to be withdrawn. Accordingly, the suit has been withdrawn along with the miscellaneous application. Hence, ratio of the judgment of Hon’ble Patna High Court in the facts and circumstances of the case is not applicable in the facts of this case. 18. It is admitted case of the petitioner is that they have participated in the selection process held on 15.10.2000 and thereafter, the result was not published fairly for a long time i.e. till the month of March, 2003, in between the said period, they have not been chosen to assail the action of the opposite party-Corporation, rather they have approached this Court in the month of July, 2003 by seeking a prayer in this writ petition not to publish the result of the recruitment test and select list and to quash the appointment orders issued in favour of the opposite parties no.4 to 7. But, by the time the writ petition has been filed, the result of the recruitment test and select list was already published. But, by the time the writ petition has been filed, the result of the recruitment test and select list was already published. Thus, there is latches on the part of the petitioners and it is settled that when there is laches on the part of the litigants, the court of equity is not available for them. 19. The ground taken by the petitioners is that once the game starts, rule of the game cannot be changed, but this principle is not applicable in the facts and circumstances of this case because no rule of selection process has been changed, rather the consideration of other candidates have been considered. Moreover, this argument is not available to the petitioners reason being that their candidature has also been considered in the midst of the selection process that is by virtue of the order passed by this Court in O.J.C. Nos.4074 of 2000 and in Misc. Case No.4342 of 2000, arising out of the above writ application seeking a direction from this Court to allow them to participate in the interview/test to be conducted and accordingly, this Court, by way of interim measure, has directed the opposite parties to allow them to participate in the interview for appointment to the post of Operator-V (Field) and subsequently, the writ petition has been rendered to be infructuous vide order dated 26.8.2016. As such, the selection process said to be commenced w.e.f. 17.1.2000 and the petitioners have been allowed to participate in the midst of the selection process. Hence, raising all the points that the others may not be allowed is the contrary stand of the petitioners and is not acceptable to this Court for the reason that when their cases can be considered by virtue of intervention of this Court, why not the cases of others, only thing is to be seen by the court of law is the fairness and transparency in making public employment and according to the conscious view of this Court which this Court has gathered by going through the entire records that the authorities have adopted fair and transparent selection process and considered the candidature of all the candidates either in the list sent by the employment exchange or through the direct application under the advertisement or the list sent from the office of the Collector, Balasore of the displaced persons. The opposite parties no.4 to 7 is working since the month of May, 2003 continuously and as such, by now they have put more than 14 years of regular service. 20. This Court, after taking into consideration the entire factual aspect as narrated hereinabove, is of the considered view that disturbing appointment of opposite parties no.4 to 7 on the behest of the petitioners, who themselves have found to be committed latches in approaching the court of law also their cases have been considered, but they have found to be less meritorious, but they are presuming to be more meritorious. In this pretext, no relief can be granted to them. 21. In view of the entire facts and circumstances, it is considered view of this Court that the petitioners have failed to make out a case. In the result, the writ petition fails and it is dismissed.