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2020 DIGILAW 50 (ORI)

Arun Chandra Mohanta v. State Of Orissa

2020-02-13

BISWANATH RATH

body2020
JUDGMENT Biswanath Rath, J. - Since both the writ petitions involve a common cause of action, they are heard analogously and taken up for final disposal by this common judgment. 2. Both the writ petitions involve challenge to the cancellation of the appointment order of the petitioners, as Ayush Doctors (Ayurvedic) in RBSK Programme at Jashipur C.H.C. in the district of Mayurbhanj (in W.P.(C) No.794/2015) and at Badampahar C.H.C. in the district of Mayurbhanj (in W.P.(C) No.796/2015), vide Annexure-6. 3. Background involving the case is that pursuant to the advertisement, vide Annexure-1 for filling up the posts of Ayush Doctors (Ayurvedic/Homoeopathic), Pharmacist and Staff Nurse/A.N.M. in the Mobile Medical Teams (MMTs) under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM. The petitioners applied for the posts claiming to be the candidates under SEBC. It is pursuant to undertaking of a selection process, the petitioners claim that for the decision of the selection authority, the petitioners have been provided with an offer of appointment, vide Annexure-3 in the year 2014 at serial no.5 (W.P.(C) No.794/2015) and serial no.6 (W.P.(C) No.796/2015). Pursuant to the offer of appointment, the petitioners joined the said posts, vide Annexure-4. It is while continuing as such, the petitioners have been served with order cancelling their appointment, vide Annexure-6. 4. Referring to the reference of the letter being the reason of cancelation of appointment of the petitioners, Sri A.K.Biswal, learned counsel for the petitioners contended that before the appointment order being cancelled, in the minimum natural justice should have been followed by providing an opportunity of show cause to the petitioners. Sri Biswal, learned counsel for the petitioners further demonstrating through the requirement in the advertisement, the observation of the Selection Committee, vide Annexure-2 more particularly taking to the candidates finds place at serial no.2, namely Gobinda Ch. Pradhan under UR (SEBC) submitted that even otherwise when the authority has continued with the services of similarly situated SEBC candidates, there was no reason for taking away the services of the petitioners, vide Annexure-6. Pradhan under UR (SEBC) submitted that even otherwise when the authority has continued with the services of similarly situated SEBC candidates, there was no reason for taking away the services of the petitioners, vide Annexure-6. Taking this Court to the order of the Mission Director, NHM, Bhubaneswar finds place at page-27 of the brief, Sri Biswal, learned counsel for the petitioners contended that for the observations therein, there was requirement for specific reservation in the SEBC category, and therefore, even assuming that there was no vacancy in the category of SEBC but looking to the number of vacancies advertised and the ratio of percentage for reservation in the SEBC category, learned counsel for the petitioners otherwise claimed that the petitioners have been considered keeping in view the intention of the Mission Director, NHM, Bhubaneswar through his communication dated 25.1.2014. It is in the above premises, Sri Biswal, learned counsel for the petitioners prayed this Court for allowing the writ petitions thereby interfering with the order at Annexure-6 and setting aside the same and permitting the petitioners to continue in their service. 5. In his opposition, Sri B.P.Tripathy, learned counsel for the contesting O.P.2 apart from objection raised in the counter affidavit demonstrating through the advertisement at Annexure-1 more particularly to the qualification and experience involving Ayush Doctors submitted that a candidate appearing through the advertisement for the post of Ayush Doctor should have been above 21 years and below 37 years as on 1st October, 2013. Taking to the document available at page-19 of the brief at serial no.22 therein involving requirement in the particular position in the district of Mayurbhanj, Sri Tripathy, learned counsel for O.P.2 further demonstrated that there is no position available for considering the case of the candidate belonging to SEBC category. Taking this Court to the proceeding of Selection Committee, vide Annexure-2 demonstrating through serial no.3 therein, Sri Tripathy, learned counsel for O.P.2 submitted that at the time of considering his case by the Selection Committee, he also belonged to UR (SEBC). It is referring to the requirement criteria in the advertisement at Annexure-1, Sri Tripathy, therefore, submitted that not only there was no vacancy to accommodate the candidates belonging to SEBC but even otherwise since the petitioners were over-aged and there is no application of relaxation of over-age to such candidates, there has been absolutely illegal selection of the petitioners. It is referring to the requirement criteria in the advertisement at Annexure-1, Sri Tripathy, therefore, submitted that not only there was no vacancy to accommodate the candidates belonging to SEBC but even otherwise since the petitioners were over-aged and there is no application of relaxation of over-age to such candidates, there has been absolutely illegal selection of the petitioners. On the question of applicability of the order of the Mission Director dated 25.1.2014, Sri Tripathy submitted that the selection since was in compliance of the direction of the Union of India, any communication at State level has no application to such appointment. Further on the claim of the petitioners on the question of non-compliance of natural justice, Sri Tripathy, learned counsel for O.P.2 referring to the decision of the Hon'ble apex Court in Dharampal Satyapal Ltd. vrs. Deputy Commissioner of Central Excise, Gauhati & others, 2015 8 SCC 519 contended that compliance of natural justice would have been rendered in no effective result. Therefore, there was no requirement of compliance of natural justice and thus prayed this Court for dismissal of the writ petition. 6. Considering the rival contentions of the parties, this Court looking to the advertisement, vide Annexure-1 finds, there is no dispute that the requirement to fill up the post of Ayush Doctor was under the RBSK Scheme, a Central Government Scheme. Looking to the vacancy position involved in the recruitment process under the RBSK Scheme, particularly for the district of Mayurbhanj available at page-19 of the brief, this Court finds, in fact, there was no vacancy in the category of UR (SEBC) and all the posts available were meant for SC & ST and UR. It is in this view of the matter, this Court finds, since the petitioners applied under the category of SEBC, there was no room for considering his case in the selection process. Coming to scan the selection process, this Court finds, the petitioners were already over-aged and the selection committee since had no scope for condonation of age illegally selected the petitioners. 7. Taking into consideration the reliance of the Mission Director's communication dated 25.1.2014, this Court finds, this being a communication at the State level has no binding effect on the selection under the Central Government Scheme. 7. Taking into consideration the reliance of the Mission Director's communication dated 25.1.2014, this Court finds, this being a communication at the State level has no binding effect on the selection under the Central Government Scheme. Considering the further submission of the learned counsel for the petitioners that when the authority has allowed the similarly situated persons particularly belonging to SEBC, as finds place at serial no.3 in W.P.(C) No.794/2015 and serial no.4 in W.P.(C) No.796/2015 of the selection process under Annexure-2, this Court observes, any selection in contravention of the advertisement criteria cannot create a right in favour of the petitioners. It is in this view of the matter and also for the support of the decision of the Hon'ble apex Court to the case of the contesting opposite parties, vide Dharampal Satyapal Ltd. (supra), this Court finds, the petitioners have no substance in these cases. In the result, both the writ petitions stand dismissed for having no merit.