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2019 DIGILAW 640 (ORI)

Sangram Keshari Mallick (SC) v. State of Orissa

2019-11-22

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This Writ Petition has been filed challenging the action of the opposite party nos.1 to 4 in not selecting the petitioner in the post of Jr. Radiographer on contractual basis under the C.D.M.O, Jagatsinghpur as well as the appointment of the opposite party no.5 in the said post. 2. Short background involved in this case is that the petitioner belongs to S.C. category and pursuant to completion of DMRT Course (having Radiography) under the Institute of Medical & Technological Research, Calcutta in the year 2006 the petitioner was issued with necessary certificate as well as mark sheet as appearing at Annexure-3 (series). Pursuant to the advertisement published in “The Samaj” on 20.12.2006 by the C.D.M.O, Jagatsinghpur inviting application from the eligible candidates for selection in the posts mentioned therein including post of Jr. Radiographer, the petitioner became an applicant and the case of the petitioner was also considered alongwith other similarly situated applicants belonging to S.C. category. In the selection process the opposite party no.5 has been selected and finding the selection of the opposite party no.5 being contrary to the terms of the advertisement, petitioner filed the present Writ Petition assailing the appointment of the opposite party no.5 vide Annexure-7. 3. Shri A.K. Mishra-2, learned counsel for the petitioner challenging the order vide Annexure-7 taking this Court to the advertisement vide Annexure-4 more particularly taking this Court to the Sl.no.4 therein involving the category of post Jr. Radiographer submitted that there is specific condition under the heading of qualification that a candidate applying for such post must have passed Radiographer course from any of the three Medical Colleges of the State or from any recognized Private Institutions. Further there is also specific condition indicating therein that the selection of the candidate for the post advertised shall be made on merit on the basis of marks secured in DMRT examination. Further taking this Court to the item no.10 at page 18a of the brief learned counsel for the petitioner submitted that the applicants were required to submit their document on or before 31.12.2006. In the above background of matter taking this Court to the list of document filed by the C.D.M.O, Jagatsinghpur obtained through R.T.I vide Annexure-6 with the heading “Sorted List of applicant for the post of Jr. In the above background of matter taking this Court to the list of document filed by the C.D.M.O, Jagatsinghpur obtained through R.T.I vide Annexure-6 with the heading “Sorted List of applicant for the post of Jr. Radiographer under C.D.M.O, Jagatsinghpurs” and also taking this Court to the Sl.no.2 therein involving the petitioner learned counsel for the petitioner contended that for the petitioner’s meeting with the requirements vide column 12 & 13 of the document vide Annexure-6 and for the opposite party no.5 appearing at Sl.no.4 securing less mark than the petitioner as appearing at column no.12, further also taking this Court to the column no.16 the ground of rejection, learned counsel for the petitioner contended that for the petitioner meeting with the requirements in the advertisement through column 13 and having secured more marks than the opposite party no.5 as clearly borne from column 12, there was no occasion for rejection of the case of the petitioner. Learned counsel for the petitioner thus contended that the ground of rejection being a ground outside the condition imposed in the advertisement, the rejection of the case of the petitioner becomes illegal. Consequently claimed that the selection of the opposite party no.5 becomes illegal and it is, in the circumstance, a claim is made by the learned counsel for the petitioner for interference with the selection of the opposite party no.5 vide Annexure-7 by this Court and declaring the petitioner to have been selected for the said post with direction for consequential benefit. In addition to the above learned counsel for the petitioner also taking this Court to the document vide Annexure-5 more particularly the document at page 13 of the counter affidavit at the instance of the opposite party no.3 and also taking this Court to the date of issuance of such certificate submitted that since the last date of submission of the application under the advertisement was on or before 31.12.2006, contended that it is strange to find that a document at the instance of the opposite party no.5 obtained on 14.09.2007 i.e. much after the cut-off date 31.12.2006, has been taken into consideration in justifying the appointment of the opposite party no.5 and thus claimed that impugned order is also otherwise bad in law. 4. 4. To the contrary Shri S.N. Mishra, learned Additional Government Advocate referring to the plea taken in the counter affidavit and taking this Court to the grounds of rejection indicated through the counter affidavit that the petitioner was not a qualified candidate from a recognized institution as verified by the opposite party no.3 and the petitioner’s qualification as well as certificate remains under clout, contended that case of the petitioner though was considered but rejected and for the document supplied by the opposite party no.5 being genuine, the opposite party no.5 was consequently selected. Referring to the counter affidavit and the other grounds taken on the candidature of the petitioner Shri S.N. Mishra, learned Additional Government Advocate justified the selection of the opposite party no.5. 5. Shri D. Patnaik, learned counsel for the opposite party no.5 though did not dispute the submission of Shri A.K. Mishra-2, with regard to consideration of the case of the petitioner on the ground beyond the advertisement but however for the selection of the opposite party no.5 being made since 2007 and as he has been allowed to continue in such post for long 12 years, a request is made by Shri D. Patnaik, learned counsel for not interfering with the impugned order and dismissing the Writ Petition. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute that both the petitioner as well as the opposite party no.5 applied for the post of Jr. Radiographer meant for S.C. category and also in terms of the advertisement dated 20.12.2006 vide Annexure-4. This Court taking into account the condition imposed therein more particularly at Sl.No.4 finds, there was single post available in the category of Jr. Radiographer meant for S.C. candidate. However for all the post of Jr. Radiographer prescribed qualification was that the candidate applying for the post must have passed and completed DMRT Course (having Radiography) from any of the three Medical Colleges of the State or from any recognized Private Institutions. It also indicates that the selection of the candidate shall be made on the basis of mark secured in the DMRT examination. It is, at this stage of the matter, this Court from Sl.no.10 of the Advertisement finds, the last date of submission of the application was on or before 31.12.2006. It also indicates that the selection of the candidate shall be made on the basis of mark secured in the DMRT examination. It is, at this stage of the matter, this Court from Sl.no.10 of the Advertisement finds, the last date of submission of the application was on or before 31.12.2006. It is, at this stage of the matter, taking into account the rival contentions of the parties, this Court from column no.13 of the list vide Annexure6 finds, both the petitioner as well as the opposite party no.5 have the requisite qualification. At Sl.no.14 there is clear indication that both the petitioner as well as the opposite party no.5 have passed from private institution. From column no.12 it appears, the petitioner has secured 73.75% of mark in DMRT examination whereas the opposite party no.5 has secured 64.75% of mark in DMRT examination. From the column therein meant for ground of rejection, it appears, the ground of rejection is “rejected not having practical technique in DMRT”. In the circumstance, this Court finds, there remains no doubt that the petitioner was having requisite qualification through the recognized institution and not only that the petitioner had also secured more marks than the opposite party no.5. For the sorted list of applicant for the post of Jr. Radiographer comparing the disclosures made in respect of the petitioner and the opposite party no.5, this Court on reading the required conditions in the advertisement finds, the ground of rejection remains outside the condition imposed in the advertisement. This Court therefore observes, rejection of the candidature of the petitioner on the grounds stated therein becomes illegal particularly for the petitioner meeting with the required criteria involving the advertisement and having secured more marks than the opposite party no.5. This Court, therefore observes, the petitioner was more qualified candidate than the opposite party no.5 and for the condition that the selection of the candidate shall be made on merit and also on the basis of mark secured in DMRT examination, the petitioner was the best candidate amongst the candidate available for the purpose and thus rejection of the candidature of the petitioner clearly remains outside the grounds contained in the advertisement. 7. This Court thus while declaring the selection of the opposite party no.5 and rejection of the candidature of the petitioner for the post of Jr. 7. This Court thus while declaring the selection of the opposite party no.5 and rejection of the candidature of the petitioner for the post of Jr. Radiographer as bad, sets aside the selection of the opposite party no.5 vide Annexure-7. As a consequence this Court declares the petitioner to have been the selected candidate for the post of Jr. Radiographer pursuant to the advertisement vide Annexure-4. For the interference in the selection process by this Court after twelve years of the selection and as the opposite party no.5 is continuing all through for no fault of him, payment, if any made to the opposite party no.5 are justified and not recoverable, further for the appointment of the petitioner as against the said post from the date the opposite party no.5 was appointed and the petitioner since has not worked all through, applying the principle of no work no pay there shall be no claim for all these period by the petitioner, but however, the petitioner would be treated to be continuing as Jr. Radiographer from the date of selection of the opposite party no.5 with notional benefit for the purpose of seniority and retiral benefit and pension etc. Considering that the opposite party no.5 has already rendered 13 years of service and has been allowed to continue as such and for his disengagement presently he is to suffer immensely, this Court directs, if there is any other vacancy in such post meant for Scheduled Caste category, he may be adjusted with such post but as a fresh candidate. This order is passed keeping in view that the opposite party no.5 is probably age barred to appear in any interview presently. 8. The Writ Petition succeeds but however for the suffering of the petitioner for his no fault and forcing him to litigation, this Court quantified the litigation cost of Rs.10,000/-to be paid by the opposite party no.2 to the petitioner within a period of two weeks hence. Issue urgent certified copy as per rules.