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2018 DIGILAW 432 (ORI)

Usha Rani Agarwal v. State of Odisha

2018-04-19

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT VINEET SARAN, C.J. - By means of this writ petition, the petitioner has challenged the selection and appointment of opposite party No.5 as female member of the State Consumer Disputes and Redressal Commission, Orissa. 2. The petitioner, an unsuccessful candidate for the selection of post of female member of the State Consumer Disputes Redressal Commission, has filed this writ petition with the following prayer :- “Under the above facts and circumstances, the petitioner humbly prays that this Hon’ble Court may be graciously pleased to admit this writ application, issue notices to the Opp. Parties and after hearing both the parties allow this writ application by declaring the appointment of the Opp. Party No.5 is illegal and nullity and quashing the same, issue a writ in nature of Mandamus or any other appropriate writ (s) as deems proper and fit in the interest of justice, directing the Opp. Party No.1 to appoint the petitioner as a Female Member to the State Consumer Dispute & Redressal Commission, Orissa, Cuttack within a stipulated period.” 3. The prayer made in this writ petition is two fold; the first prayer is to declare the selection of opposite party No.5 as illegal; and second is to direct for appointment of the petitioner as female member of the Commission. Admittedly, the selection was held in the year 1999 which was for a period of five years. 4. The submission of Sri A.K. Mishra, learned Counsel for the petitioner is that though the second prayer made in this writ petition may have become infructuous, but the first prayer with regard to declaring the appointment of opposite party No.5 as illegal, still survives. 5. The factual matrix of the case in hand is that the petitioner, having acquired degree in law, indulged herself as an Advocate and subsequently selected as a lady member of the Kendrapara District Consumer Disputes Redressal Forum by the State Government, pursuant to the selection made by the Committee constituted vide Notification dated 10.02.1994.Consequently, she joined on 02.03.1994 and continued till 01.03.1999 for a period of five years and gained experience as a lady member of the District Consumer Disputes Redressal Forum. Late Justice D.M. Pattnaik (as His Lordship then was) was appointed as the President of the State Consumer Disputes and Redressal Commission, Orissa, Cuttack on 23.04.1999 after his retirement as a Judge of the High Court. 6. Late Justice D.M. Pattnaik (as His Lordship then was) was appointed as the President of the State Consumer Disputes and Redressal Commission, Orissa, Cuttack on 23.04.1999 after his retirement as a Judge of the High Court. 6. The State Government constituted a selection committee, as per the provisions contained in Sub-section (1) of Section 16 of the Consumer Protection Act, of which Late Justice D.M. Pattnaik became the Chairman for selection and appointment of Male and Female Members of the State Consumer Disputes and Redressal Commission, Orissa, Cuttack. The Secretary of the Law Department of the State and the Secretary-in-Charge of the Department dealing with the Consumer Affairs of the State were also the Members of the Selection Committee. The Director, Consumer Affairs, Orissa-cum-Joint Secretary to Government Department of Food, Supplies and Consumer Welfare, after getting requisition from the Chairman of the Selection Committee, invited applications from the interested candidates for their selection to the post of Male and Female Members of the State Consumer Disputes and Redressal Commission, Orissa, Cuttack by publishing an advertisement on 22.12.1998 in the daily Oriya newspaper “The Samaj”. 7. In the said advertisement it was stipulated that in the prescribed proforma the candidate should submit their applications for their selection as a Male and Female Member of the State Consumer Dispute and Redressal Commission, Orissa, Cuttack enclosing an affidavit that he/she did not and should not have (a) membership in any political party or any communal organization or (b) any financial or other interests which was likely to affect prejudicially his/her functions as member of the State Commission in the event of being appointed as such. It was further stipulated that such applications should reach on or before 20.01.1999 with the Commissioner-cum-Secretary to Govt. of Orissa, Department of Food Supplies and Consumer Welfare, Orissa Secretariat, Bhubaneswar in complete manner. It was also specifically mentioned that after the last date of submission of application, i.e. 20.01.1999, no such application shall be accepted for its consideration. In response to the above advertisement, the petitioner submitted her application along with the affidavit as required in a prescribed proforma enclosing all copies of the certificates and testimonials duly attested on 16.01.1999 with opposite party No.1. 8. About 15 candidates had made their applications for the post of Female Member of the said Commission and some of them could not file their prescribed applications within the stipulated date. 8. About 15 candidates had made their applications for the post of Female Member of the said Commission and some of them could not file their prescribed applications within the stipulated date. Even after expiry of the cutoff date of submission, the applications of some of the applicants were received by opposite party No.1 However, opposite party No.1 issued the letters to all the applicants, including those who also filed their applications after the expiry of the last date of submission, directing them to appear at the interview on 11.07.1999 at 10 A.M. in the State Pantha Niwas, Bhubaneswar vide letter dated 24.06.1999. In compliance of the same, though the applicants had appeared before the Selection Committee, except the petitioner and one Arati Das of Rourkela, others were not having the past experience being a lady member in the District Forum. Besides that, the other persons whose applications were also received, after the last date of submission, did not have ability, integrity and standing and adequate knowledge or experience of having shown capacity in the dealing with the problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. As pleaded in the writ petition, the applications filed by the petitioner as well as Namita Nanda and Bijayalaxmi Mohanty were submitted on or before 20.01.1999, whereas the applications of the other candidates including opposite party No.5 were received by opposite party No.1 after the expiry of the last date of submission. But, all the candidates were called for interview and the Selection Committee recommended the name of the opposite party No.5 along with petitioner keeping opposite party No.5 as first and the petitioner as second, though opposite party No.5 submitted her application after expiry of the last date of submission of application, i.e. 20.01.1999. Hence, this application. 9. Mr. A.K. Mishra, learned Counsel for the petitioner has submitted that the application of opposite party was received beyond the last date for submission of application form, which was on 20.1.1999 and as such, her application could not have been considered. In support of his submission, he relies on Annexure-B/1 in which the date of submission of the application of opposite party No.5 has been shown as ‘nil’ and the date of receipt in the Department has been shown as 27.1.1999. In support of his submission, he relies on Annexure-B/1 in which the date of submission of the application of opposite party No.5 has been shown as ‘nil’ and the date of receipt in the Department has been shown as 27.1.1999. He has also relied on the affidavit filed by opposite party No.5 which is dated 18.1.1999, but according to him, since there is a note at the top of the affidavit giving the date 25.1.1999, the same is to be treated as having been filed on 25.1.1999 and not on 18.1.1999. It was thus submitted that the selection of opposite party No.5 being bad in law, the first prayer still survives and thus, the writ petition has not become infructuous. 10. Per contra, Sri R.K. Mohapatra, learned Government Advocate appearing for the State-opposite parties has submitted that by efflux of time, this writ petition has become infructuous as the selection and appointment was made in the year 1999 which was for a period of five years and the said period is already over. It is submitted that at this stage, it remains merely an academic exercise to decide the issues involved, which normally this Court should not entertain. In support of his submission, he has relied on the decision of the Apex Court in the case of Lokanath Padhan vs. Birendra Kumar Sahu, AIR 1974 SC 505 . It was lastly submitted that the selection process has been challenged in the present case without impleading the members of the Selection Committee and, as such, on this ground alone, the writ petition deserves to be dismissed. 11. Sri K. Patnaik, learned counsel appearing for the opposite party No.5 has adopted the submission made by Sri R.K. Mohapatra, learned Government Advocate and has further submitted that the petitioner having participated in the selection process, cannot challenge the same after the result having been declared and the petitioner having been declared unsuccessful in the selection process. 12. We have heard Sri A.K. Mishra, learned Counsel for the petitioner as well as Sri R.K. Mohapatra, learned Government Advocate appearing for the State-opposite parties and Sri K. Patnaik, learned Counsel appearing for the private opposite party No.5, and have perused the record. 13. 12. We have heard Sri A.K. Mishra, learned Counsel for the petitioner as well as Sri R.K. Mohapatra, learned Government Advocate appearing for the State-opposite parties and Sri K. Patnaik, learned Counsel appearing for the private opposite party No.5, and have perused the record. 13. It is a fact that the selection and appointment of female member of the State Consumer Dispute Redressal Commision was made in the year 1999, which was to be for a period of five years. The appointment having been made on 02.12.1999, the period of opposite party No.5 as member of the Commission has already expired on 01.12.2004. As such the issue to be decided in this writ petition is only academic. The Apex Court in the case of Lokanath Padhan (supra) while dealing with a case relating to the election of a member of Orissa Legislative Assembly, the period of which had already expired, has in paragraphs 3 and 6, held as under :- “3..... The argument of the respondent was that unless there is a living issue between the parties the Court would not occupy its time by deciding what is purely an academic question which has no sequitur so far as the position of the respondent, even ilf the appellant was able to satisfy the Court that on the date of the nomination, the respondent was disqualified under Section 9-A, it would be futile exercise, because the Orissa Legislative Assembly being dissolved, the setting aside of the election of the respondent would have no meaning or consequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. We think there is great force in this preliminary contention urged on behalf of the respondent. It is a well settled practice recognised and followed in India as well as England that a Court should not undertake to decide an issue, unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it.....” “6. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it.....” “6. We are, therefore, of the view that, the Orissa Legislative Assembly being dissolved during the pendency of this appeal, it is now wholly academic to consider whether the respondent was disqualified under Section 9-A at the date of nomination and since that is the only ground on which election of the respondent is challenged, we think it would be futile to hear this appeal on merits. We accordingly dismiss the appeal with no orders as to costs all throughout.” Keeping in view the aforesaid, we are of the view that in the present case also, since the matter is academic, as the term of the selected female member of the State Consumer Disputes Redressal Commission, Orissa is over, it would be futile for this Court to decide the claim of the petitioner. However, since the matter has been argued on merit, we proceed to consider the same accordingly. 14. From the record, it is clear that the date of application of opposite party No.5 has been shown as ‘nil’ as per Annexure-B/1 filed by the State-opposite party. Counter affidavit has been filed on behalf of opposite party No. 5 annexing therewith a Stamp Receipt dated 18.1.1999 acknowledging receipt of the application from Mrs. Arati Mohanty. In the rejoinder, though it has been stated that the document is manufactured, but in view of the fact that the receipt is dated 18.1.1999 and the affidavit sworn by opposite party No.5 in respect of her application is also dated 18.1.1999, we could be inclined to hold that the application was filed within time i.e. on 18.1.1999, which is before 20.1.1999. Merely because there has been some note scribed at the top of the affidavit, below which “dt. 25.1.1999” has been written, would not be sufficient to reach at a conclusion that the affidavit was sworn and filed on 25.1.1999, especially in the light of the fact that in the affidavit the Notary has mentioned registration number of the affidavit as 64 below which also the date mentioned is 18.1.1999. 15. 25.1.1999” has been written, would not be sufficient to reach at a conclusion that the affidavit was sworn and filed on 25.1.1999, especially in the light of the fact that in the affidavit the Notary has mentioned registration number of the affidavit as 64 below which also the date mentioned is 18.1.1999. 15. The only ground for challenge to the selection and appointment of opposite party No.5 is that the application was not filed within the time i.e. before 20.1.1999. In view of the facts of the case, we are of the opinion that the application was submitted by opposite party No.5 on 18.1.1999. As such, the said ground does not hold good. Even otherwise, since the selection process has been challenged in the present case, without impleading the members of the Selection Committee, the writ petition would not be maintainable. 16. From the factual matrix of the case in hand, it is well founded that the petitioner had participated in the process of selection without any objection. 17. In Om Prakash Shukla v.Akhilesh Kumar Shukla, AIR 1986 SC 1043 , the Apex Court has been pleased to hold that when the petitioner therein appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. In Madan Lal and others v. State of Jammu and Kashmir and others, AIR 1995 SC 1088 , the Apex Court held that if a candidate takes a calculated chance and appears at the interview than, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. 18. Considering the law laid down by the Apex Court, as well as the facts of this case, as discussed above, we are of the opinion that the writ petition lacks merit and is accordingly dismissed. No order as to costs. Petition dismissed.