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2017 DIGILAW 847 (ORI)

Rajalaxmi Beura v. Vice Chancellor, OUAT

2017-08-08

B.R.SARANGI

body2017
JUDGMENT : DR. B.R. SARANGI, J. 1. The Odisha University of Agriculture and Technology (OUAT) has been constituted under the provisions of the Odisha University of Agriculture and Technology Act, 1965. An advertisement was issued by the OUAT for recruitment to the post of Asst. Professor (Bio-Technology) on contractual basis in the College of Basic Science and Humanities, Bhubaneswar. The petitioner, having passed B.Sc. in First Class Distinction with Botany (Hons), M.Sc. (Botany) in First Division and acquired Ph.D. degree in Botany; and published 7 research papers in different journals of national/international repute and 5 scientific popular articles and also presented 10 research papers at national/international conferences, applied for the said post. The petitioner, among the 27 candidates appeared before the selection committee, was selected and engaged as Assistant Professor (Bio-Technology) on contractual basis with consolidated remuneration of Rs.8,000/- by office order dated 30.05.2005 in annexure-1. She discharged the duty assigned to her to the satisfaction of the higher authority, for which consecutively three Vice-Chancellors appreciating her work have granted certificates which have been placed on record as annexures-2, 3 and 4. 2. While the petitioner was so continuing, the OUAT issued an advertisement dated 10.08.2008 in annexure-6 for filling up of one regular post of Asst. Professor (Botany) in the General Category. Only 36 candidates, of 51 applied for the post, appeared at the interview and the selection committee prepared the panel/select list consisting of four candidates in order of merit and suitability on 01.07.2009 vide annexure-7 wherein the petitioner’s name found place at serial no.4 in order of merit. Dr. Chinmaya Pradhan, whose name found place at serial no.1, was appointed as Assistant Professor (Botany) pursuant to office order dated 09.07.2009 in annexure-8. When another vacancy arose about 9 months later, the candidate at serial no.2 of the panel, namely, Dr. Debasis Dash was appointed vide office order dated 08.03.2010 in annexure-9, when Dr. Chinmaya Pradhan was continuing in service. 3. The OUAT issued another advertisement on 20.04.2010 in annexure-10, during the life time of the panel prepared in annexure-7, for filling up of one regular post of Asst. Professor (Botany) reserved for women. Dr. Chinmaya Pradhan resigned from his post on 30.04.2010 after the advertisement was issued but during subsistence of the panel prepared on 01.07.2009 in annexure-7. Dr. 3. The OUAT issued another advertisement on 20.04.2010 in annexure-10, during the life time of the panel prepared in annexure-7, for filling up of one regular post of Asst. Professor (Botany) reserved for women. Dr. Chinmaya Pradhan resigned from his post on 30.04.2010 after the advertisement was issued but during subsistence of the panel prepared on 01.07.2009 in annexure-7. Dr. Rabindra Kumar Mishra, who stood at serial no.3 of the panel prepared on 01.07.2009, having joined elsewhere, the petitioner being stood at serial no.4 was entitled to be appointed against the vacancy created for the post of Assistant Professor (Botany) on regular basis. Due to non-issuance of letter of appointment to the petitioner, during subsistence of the valid select list/panel, she has approached this Court by means of this application. 4. Mr. G.A.R. Dora, learned Senior Counsel appearing along with Mr. J.K. Lenka, learned counsel for the petitioner strenuously contended that during subsistence of the valid select list prepared pursuant to advertisement dated 10.08.2008, the subsequent advertisement dated 20.04.2010 could not have been issued. As such, though a person on the select list has no vested right to be appointed to the post for which he/she has been selected has a right to be considered for appointment and the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. Therefore, a candidate in the waiting list in order of merit has a right to claim that he/she may be appointed if one or other selected candidate does not join. To buttress his argument, he has relied upon the judgments of the apex Court in Gujarat State Dy. Executive Engineers’ Association v. The State of Gujarat and others, 1994 (SUPP) 11 SCC 51, Surinder Singh and others v. State of Punjab and another, AIR 1998 SC 18 and A.P. Aggarwal v. Govt. of N.C.T. of Delhi and another, 2000(I) SLR 382. 5. Mr. A. Mishra, learned Senior Counsel appearing along with Mr. S.C. Rath, learned counsel for opposite parties no.1 and 2 specifically stated that merely because the petitioner’s name finds place in the select list she has no right to claim for regular appointment unless a vacancy is available. As the vacancy caused due to resignation of Dr. Chinmaya Pradhan w.e.f. 30.04.2010 was not included in the advertisement issued on 20.04.2010, the petitioner has no right to challenge the same. As the vacancy caused due to resignation of Dr. Chinmaya Pradhan w.e.f. 30.04.2010 was not included in the advertisement issued on 20.04.2010, the petitioner has no right to challenge the same. As per advertisement dated 10.08.2008, the selected candidates having been appointed as Assistant Professor (Botany), the select list has become invalid. Therefore, due to resignation of Dr. Chinmaya Pradhan if any vacancy arose, the same cannot be claimed by the petitioner. 6. Mr. B. Routray, learned Senior Counsel appearing along with Mr. D. Routrary, learned counsel for the intervenor contended that the petitioner was selected pursuant to advertisement dated 10.08.2008 for the post of Assistant Professor (Botany). She has approached this Court challenging the advertisement dated 20.04.2010 in annexure-10. During pendency of this writ petition, the OUAT issued another advertisement dated 18.10.2010 for two posts of Assistant Professor (Botany). The same was challenged by the petitioner in Misc. Case No.18340 of 2010 and by order dated 30.11.2010 this Court, as an interim measure, directed that the process of selection pursuant to advertisement dated 18.10.2010 so far as it relates to the post of Asst. Professor (Botany) under SEBC category may continue, but no appointment would be made without leave of this Court. Pursuant to such interim order, even though the intervenor-petitioner participated in the process of selection, she could not get any appointment. Therefore, she has filed an intervention application seeking to intervene and participate in the process of hearing. 7. This Court heard learned counsel for the parties and perused the records. Pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 8. So far as factual matrix of the case is concerned, there is no dispute. The only question that falls for consideration before this Court is whether during subsistence of the select list prepared pursuant to advertisement dated 10.08.2008, if subsequent advertisement issued on 20.04.2010, and in the meantime a vacancy arose, the same can be filled up by the selected candidate of the select list prepared pursuant to the advertisement dated 10.08.2008. 9. The only question that falls for consideration before this Court is whether during subsistence of the select list prepared pursuant to advertisement dated 10.08.2008, if subsequent advertisement issued on 20.04.2010, and in the meantime a vacancy arose, the same can be filled up by the selected candidate of the select list prepared pursuant to the advertisement dated 10.08.2008. 9. In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra (1990) 2 SCC 669 , while considering the question of the meaning of selection, the apex court held as follows: “If the word ‘selection’ is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications scrutiny of applications, rejections of defective applications or elimination of ineligible candidates conducting examinations, calling for interview or viva-voce and preparation list of successful candidates for appointment.” In view of such position, the process of selection began with issuance of advertisement and ended with the preparation of selection list for appointment and following that the select list was prepared where the petitioner’s name found place at serial no.4. When the said select list was in subsistence for a period of one year, merely because a subsequent advertisement was issued on 20.04.2010, that ipso facto cannot nullify the select list prepared pursuant to advertisement issued on 10.08.2008. Rather the effect of the said select list pursuant to advertisement dated 10.08.2008 can only be invalidated after selection pursuant to advertisement dated 20.04.2010 is complete by preparing the select list for appointment and, as a matter of fact, no such select list has been prepared pursuant to advertisement made on 20.04.2010. Therefore, when a vacancy arose due to resignation of Dr. Chinmaya Pradhan, who stood first in the select list pursuant to advertisement dated 10.08.2008, the petitioner, being the next candidate, should have been issued appointment letter, as in the meantime Dr. Therefore, when a vacancy arose due to resignation of Dr. Chinmaya Pradhan, who stood first in the select list pursuant to advertisement dated 10.08.2008, the petitioner, being the next candidate, should have been issued appointment letter, as in the meantime Dr. Debasis Dash who stood second in the merit list was already appointed and the candidate at serial no.3 had joined elsewhere. 10. In State of U.P. v. Rafiquddin, AIR 1998 SC 162 the apex Court held that a select list prepared by the Public Service Commission on the basis of results of the competitive examination of a particular year should not normally be used after the results of a subsequent examination are declared. Admittedly, the petitioner in the instant case had been selected pursuant to advertisement dated 10.08.2008 and during validity of the select list within one year the advertisement dated 20.04.2010 was issued and, as such, no select list has been prepared by the authority pursuant to advertisement dated 20.04.2010. In such eventuality, the select list prepared pursuant to advertisement dated 10.08.2008 remains valid and operative. 11. No doubt, a select list operates only for a particular year if so stipulated and only those selected in that year can be enlisted and even if a list is prepared in the subsequent year for the selectees of the previous year it will relate back to the previous year. In State of U.P. v. Nidhi Khanna, AIR 2007 SC 2074 , the apex Court held that once a fresh select list is prepared pursuant to a subsequent advertisement, a person empanelled in the earlier select list issued under an earlier advertisement is not entitled to be appointed. In effect there is a super-session of the earlier list. As the select list pursuant to advertisement dated 20.04.2010 has not been prepared and validity of the select list pursuant to advertisement dated 10.08.2008 is continuing, therefore, the petitioner is entitled to be considered for appointment on regular basis against the vacancy caused due to resignation of Dr. Chinmaya Dash, who stood first pursuant to advertisement dated 10.08.2008. 12. The purpose of preparation of the select list has got its own meaning. Chinmaya Dash, who stood first pursuant to advertisement dated 10.08.2008. 12. The purpose of preparation of the select list has got its own meaning. According to the post advertised, if the said post is filled up in order of merit and during validity of the said list if some of the persons those have been appointed in order of merit either resigned or quit the job for the reason some or other the consequential vacancy arose, the same shall be filled up by the rest of the candidates from the select list. That select list became a waiting list for the next persons, those who are waiting for job conducted by the authority concerned. The waiting list prepared in service matter by a competent authority is a list of eligible and qualified candidates, who in order of merit placed before the last selected candidate. Usually, it is linked with the selection or examination for which it is prepared. The said list was prepared taking into account not only the number of vacancies existing on the date when the advertisement is issued or applications are invited, but even those which are likely to arise in future within one year or so due to retirement etc. 13. In Gujarat State Dy. Executive Engineers’ Association (supra), the apex court held that such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other read on or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided, then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. Referring to Gujarat State Dy. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided, then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. Referring to Gujarat State Dy. Executive Engineers’ Association (supra), the apex Court in Surinder Singh (supra) held that a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. 14. In A.P. Aggarwal (supra), the apex Court held that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right to be considered for appointment and at the same time the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. The Court said that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, ordinarily there is no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person who is on the select panel. 15. In view of factual and legal position, as discussed above, there is no iota of doubt that the petitioner’s claim, against the vacant post caused due to resignation of Dr. Chinmaya Pradhan, in terms of the select list prepared pursuant to advertisement issued on 10.08.2008 is wholly justified. Therefore, she should have been absorbed on regular basis as she was selected by following due procedure of selection and has got requisite qualification to hold the post of Assistant Professor (Botany) on regular basis. 16. Considering the fact from other angle, in terms of Statute 49 of the Orissa University of Agriculture and Technology Statute, 1966 (for short “OUAT Statute, 1966”), the petitioner could have been considered for substantive appointment, as she was allowed to discharge her duty against a permanent post. 16. Considering the fact from other angle, in terms of Statute 49 of the Orissa University of Agriculture and Technology Statute, 1966 (for short “OUAT Statute, 1966”), the petitioner could have been considered for substantive appointment, as she was allowed to discharge her duty against a permanent post. Statute 49 of the OUAT Statute, 1966 is quoted below: “Whenever a permanent post in any grade and pay scale is available for substantive appointment, the claim of any university employee holding a tenure post or temporary post continuously for a period exceeding two years in that grade and pay scale and possessing the qualifications required for the permanent post, shall be considered first for substantive appointment in that permanent post.” In the instant case, the admitted fact is that the petitioner, on being selected by following due procedure of selection, was engaged on contractual basis as Assistant Professor (Botany) under the OUAT and is continuing as such. In the meantime, she has completed more than 13 years of service and her performance has been highly appreciated by three successive Vice-Chancellors of the University. Similar question had come up for consideration before this Court in Dr. Sarbanarayan Mishra v. OUAT in W.P.(C) No.14049 of 2006 and by judgment dated 17.07.2008 this Court directed to give substantive appointment to the petitioner therein against the vacant post in terms of Statute 49 of the Statute, 1966. Challenging the said judgment, OUAT preferred Special Leave Petition which was subsequently converted into Civil Appeal No. 3940 of 2009, and the same was dismissed as withdrawn by order dated 03.08.2015. Thereby, the judgment in Dr. Sarbanarayan Mishra (supra) was confirmed by the apex Court. Relying upon the principle laid down by this Court in Dr. Sarbanarayan Mishra (supra), in Susanta Kumar Mohanty v. OUAT, 2016 (1) OLR 565 this Court directed to appoint the petitioner therein substantively against the vacant post in Class II cadre in which he was discharging his duty and to extend all the consequential service benefits as due and admissible to him in accordance with law. 17. In view of the discussions made in the foregoing paragraphs, this Court is of the considered view that since a vacancy was created due to resignation of Dr. 17. In view of the discussions made in the foregoing paragraphs, this Court is of the considered view that since a vacancy was created due to resignation of Dr. Chinmaya Pradhan, who stood first in order of the merit list prepared pursuant to advertisement dated 10.08.2008, the petitioner, being placed at serial no.4 of the said merit list, should have been given substantive appointment against the said vacancy, as the candidate at serial no.2 had already been appointed during subsistence of the select list, and the candidate at serial no.3 had joined elsewhere. The authorities are, therefore, directed to give substantive appointment to the petitioner and regularize her services against the vacancy caused due to resignation of Dr. Chinmaya Pradhan and extend all consequential service benefits admissible to the post in accordance with law. The entire exercise shall be completed within a period of three months from the date of receipt of the judgment. 18. The writ petition is accordingly allowed. No order as to cost.