Sushanta Kumar Mallik vs State of Orissa and Another

R.N. Misra, J.—The Director of Indian Medicines and Homeopathy. Orissa (opposite party No. 2) invited applications for the posts of Medical Officers (H) from Scheduled Castes and Scheduled Tribes candidates only to fill up vacancies against the reserved quota. The applications were to reach before 27-12-1976 and the candidates were required to be D.M.S. or D.H.M.S. (Homeopathy) Diploma/Degree holders from a medical institution recognised under the Homeopathy Central Council Act and the candidates should have been registered Homeopathic Practitioners u/s 21(2)(c) of the Orissa Homeopathic Act and must not have been below 20 years and above 33 years of age on 1-12-1976. Petitioner, a member of the Scheduled Castes, alleging to have possessed all the qualifications required, applied for being selected to one of the posts. The opposite party No. 2 required him by notice dated 18-1-1977 (Annexure-6) to appear at an interview for selection on 31-1-1977. Petitioner alleges that there were twelve vacancies in the reserved quota and the selection was covered by the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 (hereinafter called the "Reservation Act"). Only 8 candidates against the 12 vacancies had responded. Under the provisions of Section 9(3) of the Reservation Act, if candidates belonging to these two Castes possess the minimum qualification required for Posts and Services as advertised, they are bound to be recruited. Since Petitioner had all the qualifications required for the Post, it was not necessary to subject him to any further examination. The opposite party No. 2 a Joint Director of Health Services representing the Director of Health Services of Orissa and the Chief Medical Officer, Homeopathy, a subordinate of opposite party No. 2, constituted a Board for interview. They themselves evolved a process of assessment and prescribed that a candidate would be deemed to have passed if he secured 50 per cent of marks in accordance with their scheme. Petitioner did not secure 50 per cent marks and was accordingly not selected. He represented his claim before Government and the Minister as also the then Chief Minister directed that Petitioner should be recruited; yet the opposite party No. 2 on account of his prejudices against the Petitioner for his having filed a writ application before this Court in regard to non-publication of results of the examination conducted by the Board, did not give effect to the direction of Government. Petitioner has, therefore, filed this application for the issue of a writ of mandamus or other appropriate direction for treating him as having been selected for the Post advertised under Annexure-1.

The Under Secretary to Government in the Health & Family Welfare Department has filed a counter affidavit on behalf of opposite parties 1 and 2. Though there was some allegation against opposite party No. 2, he has not chosen to file any counter affidavit. In the counter affidavit, it has been pleaded that the advertisement under Annexure-1 itself contemplated of an interview. The interpretation put by the Petitioner u/s 9(3) of the Reservation Act is not correct. Government had authorised the Board to evolve its own procedure and as the proceedings of the Selection Board would show, it had been decided that those of the candidates who secured 50 per cent marks would be taken to have passed the selection test. Petitioner secured only 4777 per cent marks and was, therefore, not selected (Annexure-B). It is true that the Deputy Minister and the Minister of Health, ordered that the Petitioner should be adjusted against the vacancies reserved for Scheduled Tribes as there was no vacancy in the Scheduled Castes quota. The Chief Minister passed an order that the Petitioner could be conditionally appointed and his services could be terminated if the Tribal Rural Welfare Department and the Law Department came to the conclusion that there should be a further examination for selection. As the Administrative Department (Tribal and Rural Welfare Department) opined that the minimum qualification in Section 9(3) of the Reservation Act did not mean only educational qualification but also covered such other qualifications as may be prescribed for any particular Post, there was no scope for enforcing the order of the Chief Minister. Petitioner thereafter filed a rejoinder reiterating his stand in the writ application and further alleged in paragraph 6 thereof that in the selection of general candidates of the same year, the requirement was 40 per cent and that being so, there was no justification to adopt a higher percentage so far as reserved vacancies were concerned, This, it was maintained, was contrary to the statutory Rules under the Reservation Act.

Several adjournments were granted to the learned Additional Government Advocate to produce the relevant records and on 18-1-1978, the learned Additional Government Advocate had been directed to produce the record showing the percentage of marks taken for consideration in the selection of general candidates for the vacancies during the relevant period. In that order, it had been clearly indicated that if documents were not produced within a week from 18-1-1978, the Court would be free to proceed on the footing that the percentage adopted is 40.

It is not disputed that the Petitioner satisfies the qualifications laid down in Annexure-1. There is no scope for dispute that Annexure-1 contemplated of an interview. Section 9(3) of the Reservation Act provides:

The Scheduled Castes and Scheduled Tribes candidates shall be recruited to the extent of the reserved vacancies if they possess the minimum qualifications required for the posts or services.

Petitioner''s stand has been that it is not open to the recruiting authorities to provide any additional qualification if a candidate belonging to the Scheduled Castes or Scheduled Tribes possesses the minimum educational qualification for the Post or the Service. On the other hand, the Administrative Department is of the view that it is always open to the recruiting authorities to prescribe such other general qualifications as may be necessary for the Post or the Service and Sub-section (3) of Section 9 of the Reservation Act cannot be so interpreted as to take away the right of the recruiting authorities. We are inclined to agree with the learned Additional Government Advocate that the view taken by the Administrative Department is correct. The minimum qualifications required for the "Posts or Services" as provided in Section 9(3) of the Reservation Act would certainly not exclude the right of the recruiting authorities to prescribe other qualifications apart from educational qualifications. After all, the efficiency of the Public Service has to be kept in view and taking the requirements of any particular posts into considerations, the Governmental agency is entitled to insist upon any further qualifications apart from the educational qualifications laid down. Petitioner''s contention on this score must, therefore, be repelled

The next contention is that the Selection Board had no power to formulate its own procedure. It is contended that Government have on 24-12-1977 communicated to opposite party No. 2 the criteria for selection and have said:

I am directed to say that the Government has been pleased to fix the following criteria for selection of Homeopathic Medical Officers (H) for Government Homeopathic Dispensaries and Hospitals: 75 per cent of the mark should be ear-marked for career (qualification and experiences) and 25 per cent for interview. No. VI-MED. VIC/77. 41894/H, Dated 24-12-1977).

Admittedly, the impugned selection was prior to the Government prescription. In the Circumstances, the Impugned selection cannot be questioned as not being in conformity with the Government order. On the other hand, from the records we find that the State Government had authorized the Committee to hold a written test it deemed necessary 10 addition to the viva-voce examination and details thereof were to be worked out by the Committee (Annexure-4). It was, therefore, open to the Selection Committee to formulate its own procedure and we are not inclined to accept the Petitioner''s contention that the procedure indicated by the Selection Committee was 10 excess of its powers.

Petitioner alleged in the writ application that the opposite party No. 2 had certain prejudices against him. The allegations are not very clear. There is also no cogent material to accept the truth of the allegation. We are inclined, however, to observe that it was appropriate that the opposite party No. 2 who had notice of the proceedings and on whom a copy of the writ application had been served should have come before the Court denying the allegations. At any rate, we are not inclined to accept the Petitioner''s charge that the action in not recruiting the Petitioner is vitiated on account of malafides and prejudices. Nor are we impressed by the contention of the Petitioner that the opposite parties have violated the orders of the Chief Minister and the Minister of Health by not recruiting the Petitioner. The question was under examination and until the matter was finalised, actual appointment was not issued.

The only other question that remains for consideration now is the Petitioner''s submission that while no such examination was made for the recruitment of candidates against general vacancies during the same year, a different standard had been used when the impugned recruitment took place. Learned Additional Government Advocate was good enough to place the entire record relating to recruitment before us. Admittedly there is no procedure as in Annexure-B laid down for the selection of candidates against the general vacancies. There is also no material to show that any special percentage had been prescribed for selection of candidates against general vacancies. There is no dispute that for the Degree 40 per cent in written and ''10 per cent in practical and oral and 50 per cent in aggregate is prescribed. In the absence of any special prescription by the Selection Committee, as no such document has been placed before us, we must assume that the selection was made on the basis of the result in the Degree examination. A set of Rules under the Reservation Act have been made entitled "The Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Rules, 1976." Sub-rule (7) of Rule 4 prescribes:

Within any year of recruitment, the conditions of eligibility by age or otherwise should remain the same even if recruitment is made more than once in that recruitment year that is, a person who was eligible on the first of April of a particular year shall not be disqualified on the ground that he was no longer eligible by the time the relevant vacancy (against which he could not be appointed) arose later in that recruitment year.

It is the contention of the Petitioner relying on this provision that the conditions of eligibility should not have been different when Petitioner''s recruitment was under consideration from the conditions applied at the general recruitment. The spirit of the provision seems to support the Petitioner. The Illustration given in the sub-rule does not cover the entire field and we are prepared to accept Mr. Misra''s contention for the Petitioner that the Illustration is confined to, eligibility by age. "Otherwise"

Covers a larger field than eligibility by age. The Rule seems to intend maintenance of parity at the selections during the same year. Otherwise, discrimination is bound to creep in. One other factor to be kept in view is that for filling up vacancies in the reserved quota, a standard more meticulous and stiff than the one applied at the general selection is never intended. Therefore, while for the selection for general vacancies, the elaborate procedure under Annexure-B had not been followed, there was no necessity for evolving such a procedure while dealing with reserved vacancies. On this ground, Petitioner seems to have genuine grievance.

We would accordingly accept the Petitioner''s contention that rejecting his candidature was not valid particularly when even according to the opposite parties he had secured more than 47 per cent. We would like to clarify that we have not been swayed away by the consideration that the Petitioner had secured more than 47 per cent, but one thing is certain that different standards have been evolved for the recruitments during the same year and Petitioner has, therefore, been genuinely aggrieved. We think it appropriate in the facts of the case and keeping the entire background in view to direct that he should be deemed to have been recruited. Accordingly, a writ of mandamus be issued to the opposite parties to recruit him to the Post advertised under Annexure-1 against the reserved quota within one month from the date of service of the writ. Petitioner shall be entitled to emoluments from the date of actually joining service. We make no direction for costs.

P.K. Mohanti, J.

I agree.

Ordered accordingly.