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2018 DIGILAW 499 (ORI)

Gargaba Biswal v. State Of Odisha

2018-05-02

SUJIT NARAYAN PRASAD

body2018
JUDGMENT S.N. Prasad, J —The writ petition is for quashing the order in directing for resignation of service issued by the Sarapanch of Patuapali Grampanchayat under Annexure9 and letter dtd.30.10.20-14 and second selection list dated 10.10.2013 issued by the Panchayat Samiti Officer, Agalpur (Duduka) under Annexure-8 and further to issue direction upon them to allow the petitioner to continue as Jogana Sahayak of Patuapali Grampanchayat in the district of Balangir along with all service benefits. 2. The brief fact of the case of the petitioner is that in pursuance to an advertisement published on 16.5.2012 by the Block Development Officer, Agalpur (Duduka) by which applications have been invited to fill up the post of Jogana Sahayak in respect of each Grampanchayat of Agalpur Block, District Balangir. In pursuance thereto the petitioner along with others had applied for appointment as Jogana Sahayak in respect of Patuapali Grampanchayat. The petitioner had submitted all the documents for consideration of his candidature. The selection committee has concluded the selection process, merit list was prepared in which one Manjusri Mahakud stood in the 1st position, the petitioner at 2nd position and opposite party no.6 at serial no.3. The said Manjusri Mahakud, after rendering her service for few months, has resigned due to legal necessity on 31.7.2014. Thereafter one letter was issued from the office of the Grampanchayat, Patuapali to the petitioner for joining as Jogana Sahayak which was issued on the ground that the petitioner was placed at 2nd position in the merit list, accordingly the petitioner has joined as Jogana Sahayak on 19.9.2014 and started discharging his duty. The petitioner while continuing as such, one letter was issued from the office of Block Development Officer, Agalpur (Duduka) Block by preparing a separate panel list of Jogana Sahayak in order to appoint chronologically vide order dtd.30.10.2014 which was issued on the ground that the petitioner has secured 3rd position and one Sujata Mishra has secured 2nd position, thereafter the appointment of the petitioner has been held to be wrong in view of the subsequent calculation by the authorities, accordingly an order has been passed by the Sarapanch, Patuapali Grampanchayat (O.P. No.5) directing the petitioner to resign from service on 21.11.2014 and it was reflected therein that the petitioner has to resign from service within seven days from the communication of the order. The petitioner thereafter has applied under Right to Information Act seeking information as to what led the authorities to place opposite party no.6 in 2nd position. According to the petitioner the calculation of marks of opposite party no.6 is wrong reason being that her marks has been calculated out of total marks including the marks secured by her in the optional subject, as such the aggregate comes to 37.54% and so far as the petitioner is concerned, he has obtained 342 marks out of total 900 which is coming 38%, as such he cannot be placed at 3rd position. Learned counsel for the petitioner, in course of argument, has submitted that even accepting the calculation of marks as true, but asking him to resign from service is an arbitrary action of the authorities and that too without issuing any show cause notice, as such this writ petition has been filed. 3. The opposite party State as well as opposite party no.6 have appeared and represented through their counsels who have submitted that although initially the opposite party no.6 has submitted in her application form the total marks secured by her in the CHSE as 413 out of 1100, percentage of marks secured comes to 37.54%. The opposite party no.6 has enclosed the marksheet of CHSE, the authority, on verification, has found that 1100 marks include the total marks of optional subject and 413 is inclusive of the marks secured by her in optional subject, as such subsequently it was calculated out of 900 deducting the 200 marks earmarked for optional subject and calculating it from the actual marks excluding the marks obtained in the optional subject which was 374. The total percentage of marks comes to 41.56% in the CHSE. It has been stated that the criteria to select has been fixed under Annexure-1 which is an advertisement which contains the provision for selection procedure which will be based on career marking with weightage of matriculation being 30% for +2 being 30% and for +3 being 40% and accordingly the marks of matriculation, +2 and +3 has been calculated by taking it of its 30%, 30% and 40% respectively of Matriculation, +2 and +3, total comes to 46.20%. While on the other hand the petitioner's mark has come to 45.99%. While on the other hand the petitioner's mark has come to 45.99%. However, due to bona fide mistake the opposite party no.6 was placed in serial no.3 but subsequently while rectifying it the opposite party no.6 has been placed in the 2nd position, hence the authorities have taken decision to consider the appointment of opposite party no.6 since she is found to be more meritorious in comparison to that of the petitioner, accordingly asked the petitioner to tender his resignation, hence there is no illegality in the same, otherwise the authority would have taken decision to terminate him from service for the simple reason that if any meritorious candidate is there, he / she cannot be given go bye ignoring the merit over and above the performance of the less meritorious candidate. So far as the contention of the petitioner that no show cause notice has been issued, it has been submitted by them that when the fact is admitted, merely on account of the fact that show cause notice has not been issued, the decision of the authority cannot be said to be improper. 4. Heard the learned counsel for the parties and on appreciation of their rival submissions and from the material available on record it is evident that one advertisement was published on 16.5.2012 for fulfilling the post of Jogana Sahayak for each Grampanchayat of Agalpur (Duduka) Block of Balangir district for smooth distribution of public distribution system at Grampanchayat point. The eligibility criteria has been stipulated therein as per which the candidate should be a permanent resident of the Grampanchayat, he / she should be a graduate (+3) and he / she should be of age between 21 to 35 years up to 31.5.2012. Selection procedure has also been provided therein which is to be based on career marks with weightage for matriculation being 30%, for +2 being 30%, for +3 being 40%. A committee under the Chairmanship of Block Development Officer with MI / IS as convener and concerned Sarpanch of Grampanchayat as member will do the selection and provide the panel of 3 names to the Collector / Sub-Collector (as decided by Collector) for approval. Upon approval by the appropriate authority, the panel names will be provided to the concerned Gram panchayat for appointment of the 1st person (scoring highest mark) as Jogana Sahayak. Upon approval by the appropriate authority, the panel names will be provided to the concerned Gram panchayat for appointment of the 1st person (scoring highest mark) as Jogana Sahayak. If no graduate is available, then re-advertisement shall be made for selection from amongst +2 pass applicants of the concerned Grampanchayat. In pursuance to the said advertisement, the petitioner along with other candidates have participated in the selection process including opposite party No.6 and one Manjusri Mahakud. The selection committee has prepared a merit list and on the basis of the selection procedure fixed under Annexure-1 the said Manjusri Mahakud has been found to be securer of highest marks, i.e. 56.70% hence was placed at top in the merit list. The petitioner initially was in the 2nd position while the opposite party no.6 was at 3rd position. It is further evident from the material available on record that the opposite party no.6, in his application form, has disclosed the marks secured by him in CHSE examination showing therein total marks 1100 and marks secured as 413, percentage of which is 37.54. The total marks as reflected in the marksheet which was enclosed with the application form was 1100 which was inclusive of the marks of the optional subject, 413 was also inclusive of marks secured by opposite party no.6 in the optional subjects. The candidate who has been ranked at sl. No.1, namely Manjusri Mahakud since was found to be more meritorious in comparison to other two candidates, she was offered with the appointment, she has accepted it and resumed her duty but subsequently she has resigned. By virtue of resignation of Manjusri Mahakud, the authorities have issued appointment letter in favour of the petitioner. In pursuance thereto he has started discharging his duty but subsequently it was detected by the selection committee that the committee has wrongly calculated the marks of opposite party no.6 since in place of 1100 under the total marks it should be 900 and the total marks secured would be 374 and not 413 since 413 was the marks including the marks obtained in the optional subject. Accordingly the percentage of marks has come to 46.20%, in consequence thereof she has been found to be second in the merit list. Accordingly the percentage of marks has come to 46.20%, in consequence thereof she has been found to be second in the merit list. The selection committee, thereafter, has asked the petitioner to tender his resignation since over and above him, opposite party no.6 is more meritorious, as such she being in the second position is to be appointed. Thereafter the petitioner has approached this court by way of the instant writ petition questioning the decision of the authorities. The contention raised by the petitioner is that he cannot be said to be 3rd in the rank since he has secured 56.24% while opposite party no.6 has secured 56.01% as would be evident from Annexure-4. His submission is that the opposite party no.6 has tried to mislead the authority by disclosing in the application form 1100 and securing 413 marks which subsequently has been rectified to 900 and 374 which is the marks secured by her in CHSE. This court, after appreciating the argument advanced on behalf of the petitioner, is of the view that the opposite party no.6 has filled up her application form although disclosing therein the total marks of 1100 and marks secured as 413 but along with mark-sheet of CHSE. It is not in dispute that the total subject of the CHSE also inclusive of optional subjects and the total marks under the said heading is 200 and 900 is of the actual subjects. The opposite party no.6 has secured 374 out of 900 apart from the marks secured by her in the optional subjects, but she has disclosed in the application form as 1100 and 413 inclusive the marks obtained in optional subject, the percentage of marks secured has come as 37.54%. After resignation of Manjusri Mahakud, although appointment has been offered to the petitioner but it has been realized by the selection committee that there is some mistake which has been committed by the selection committee so far as the addition of marks of opposite party no.6 is concerned, accordingly on verification of calculation it was found that the marks secured by her excluding the optional marks is 374 out of 900, accordingly the total percentage in CHSE comes to 41.56%. It is evident from the revised selection list that with comparison with the addition of marks of the petitioner vis--vis opposite party no.6 done in pursuance to Annexure-1, the opposite party no.6 has got weightage of 30% in Class X as 16.96%, +2 as 12.47% and +3 weightage of 40% as 16.77, total comes to 46.20%, while on the other hand petitioner's weightage of Class-X comes to 19.36%, in +2, 11.40% and +3, 15.23% which comes to 45.99%. The competent authority, after realizing the mistake, has issued the order to ask the petitioner to tender his resignation since he is not entitled to hold the post by giving go bye to the candidature of opposite party no.6, according to my view, asking the petitioner to tender resignation cannot be said to be arbitrary exercise since the opposite parties have given a chance to the petitioner so that the illegality which has been occurred in selecting him may be rectified otherwise he would have been terminated from service. So in order to avoid the order of termination, the petitioner has been given a chance to tender his resignation asking him to resign, is not held to be illegal by this court in the facts and circumstances of the case. The fact remains that when the petitioner is less meritorious than any other candidate then the more meritorious candidate has got every right to be appointed and candidature of such candidate cannot enrolled and if any illegality has been committed in enrolling the candidature of such candidate, it is open to the selection committee or the competent authority to rectify it on the principle that if any illegality has been committed it will not be allowed to be perpetuated and the moment it came to the knowledge of the authority it has to be rectified, as such considering this legal position the petitioner has been asked to tender his resignation, hence there is no error in the said decision. 5. 5. Learned counsel for the petitioner submits that before asking to tender resignation no show cause notice has been issued, there is no dispute in the settled position that before taking any adverse action against an incumbent or any party, the principle of natural justice is to be followed, but simultaneously the principle of natural justice cannot be said to be followed in straight jacket formula and if there is no chance of any change in the factual aspect, merely on the ground of non-observance of principle of natural justice, the decision taken by the authority cannot be held to be illegal rather the question of following the principle of natural justice will be applicable when the fact is in dispute, reference in this regard may be made to the judgments rendered by Hon'ble Apex Court in the case of Dharampal Satyapal Ltd. Vrs. Deputy Commissioner of Central Excise, Gauhati and Others , (2015) 8 SCC 519 wherein their lordships have laid down that even if notice has been issued, if there is no chance of change in the factual aspect, merely on the ground of not following the principles of natural justice the order cannot be said to be illegal. In the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. & Ors. , (2004) 4 SCC 281 it has been held by their Lordships that it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In the case of Escorts Farms Ltd. Vrs. Commissioner, Kumaon Division, Nainital, U.P. & Ors. , (2004) 4 SCC 281 it has been held by their Lordships that it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. Here in the instant case it is evident that the petitioner admittedly has secured lesser marks in comparison to that of opposite party no.6, as would be evident from the material available on record which cannot be disputed by the petitioner even assuming that the matter would be remitted before the authority by directing him to provide an opportunity of hearing, no purpose would be served since the factual aspect as stated herein above related to marks obtained by the petitioner vis--vis opposite party no.6 is not in dispute and cannot be disputed by the petitioner and if it will be remitted before the authority it will lead to empty formality and useless theory, as such this court is of the view that merely on account of the fact that the principle of natural justice has not been followed, the decision of the authority cannot be held to be illegal. In view of the entirety of facts and circumstances, in my considered view the petitioner has failed to make out a case for passing positive direction in his favour, accordingly the writ petition fails and it is dismissed.