State of Orissa and anr. Vs. Bharat Ch. Jena and ors. - Court Judgment

I.M. Quddusi, J.

1. All these Writ Petitions involve common questions of facts and law and as such they are being disposed of by this judgment.

2. The State of Orissa in the Revenue Department and the Collector, Malkangiri have challenged the judgment and order dated 9.7.2002 in a batch of O.As, leading case of which was O. A. No. 1448 of 2001. They have also challenged the Order dated 10.1.2003 on the application for clarification filed by the intervenors and the petitioners in the said O.As. passed by the Orissa Administrative Tribunal, Bhubaneswar.

3. The brief facts of the case are that in the year 1996 a recruitment was conducted by the Collector, Malkangiri for appointment on the posts of Junior Clerks in his district. Some unsuccessful candidates had challenged that selection before the Tribunal by filing some O. As. including O. A. No. 874 of 1996 which were declared in a batch by a common judgment and order dated 10.9.1997 with the direction that a fresh select list of successful candidates including the candidates who had already been given appointment be drawn up after fresh scrutiny. While preparing the select list in pursuance of the said direction, it was decided by the Collector (Petitioner No. 2 in the instant Writ Petition) that 18 candidates are to be treated as unsuccessful as they were not having the minimum speed of 20 words per minute in typing out a passage consisting of 200 words, as a result of which notices were issued on 6.2.1998 to those candidates who had already been given appointment asking them to show cause as to why their services would not be terminated for the reason that their names had not found place in the fresh select list drawn up in accordance with the above mentioned order of the Tribunal. Being aggrieved, those candidates filed the batch of O.As. before the Tribunal which were decided vide the impugned common order as already mentioned above.

4. The question of law for determination before the Tribunal was whether while preparing the fresh select list, adoption of the norm of minimum speed of 20 words per minute in typing was justified Vide impugned judgment and order the Tribunal has held that the same was not justified. The following reasons were given by the Tribunal in its judgment for arriving at that conclusion :

(i) The Schedule to the O.M.S. Rules 1985 as it prevailed before amendment only states that there shall be a test in typewriting to know that the candidates have fair knowledge in typewriting. The minimum speed for deciding fair knowledge in typing is not indicated in the schedule.

(ii) The advertisement for the recruitment examination issued by the Collector on 3.1.1996 which is at Annexure-1 to 0. A. 1455/2001 also does not stipulate that such a minimum standard would be adopted. It only states that a typewriting test in English will be held for the candidates who qualified in the written test.

(iii) A meeting of the recruitment board was held before the examination was conducted to decide the modalities for conducting it. The proceedings of that meeting are available at Annexure-3 to O. A. No. 1448/2001. What is recorded in these proceedings regarding the typewriting test is as follows :

It was further unanimously decided to hold the type-test on two days i.e. 26/27.2.1996 in TIC Control Room in both morning and afternoon sessions. ADM suggested that as the probable date of type test has already been informed to the candidates on written test, a general notice indicating the roll number of candidates qualified for type test would be sufficient.(iv) Call letter sent to the successful candidates of the written examination asking them to appear in the typewriting test which is at Annexure-9 to O. A. 1448/2001 also does not state that the test will carry a minimum qualifying standard of 20 words per minute.

5. The recruitment to the post in question, i.e. Junior Clerk, is governed by the Orissa Ministerial Service (Method of Recruitment of Posts of Junior Clerks in the District Offices) Rules, 1985 (hereinafter referred to as 'The Rules'). In Rule 7 of the Rules the eligibility of a candidate has been indicated. The minimum requisite qualification mentioned therein was Matriculation or equivalent examination and also to be able to speak, read and write Oriya and should have passed M.E. Examination with Oriya as language subject or passed the Matriculation or equivalent examination with Oriya as the medium of examination in non-language subject or passed in Oriya as language as a subject in the final examination of Class VII or above, or, passed a test in Oriya in M.E. School standard conducted by the Education Department. But it has not been mentioned therein that knowledge of typing was essential and no requirement of any certificate in respect of knowledge of typing has been mentioned therein. In Rule 10 the standard and syllabus of the examination has been prescribed and appendix has been given in the Rules. For the purpose of our reference, Rule 10 as well as the appendix is reproduced hereunder:

10. Standard and syllabus of the examination. The Competitive Examination shall consist of written test for three hours duration, which shall consist of objective type questions to test the candidates intelligence, alertness, general knowledge and clear thinking. There shall be no viva voce. The standard of examination shall be equivalent to that of Matriculation and the question paper shall be modeled on the lines indicated in the Appendix to these rules. There shall also be a test in type writing.

APPENDIX

1. Objective Language Test (English and Oriya)

(a) Question to test English... 40 marks in test

(i) Correct use tense,

(ii) Correct use preposition,

(iii) Correct use of articles,

(iv) Correct use of verbs and its agreement

(These questions shall consist of a series of sentences with blanks and a group of verbs, prepositions, etc., against each sentence and the candidate shall be required to tick off the correct verb, preposition, article or tense, as the case may require.

(b) Question to test Oriya

(i) Oriya Grammar

(Objective type) ... 30 marks(ii) Translation (One English passage to be translated into Oriya ...10 marks(iii) A letter to be written ...20 marks in Oriya2. Objective General Knowledge

(In this category, there should be a series of matching questions of different categories like :

(a) Matching Historical events with dates, personalities and places,

(b) Geographical facts with places,

(c) States, countries and institutions with headquarters,

(d) Books and authors,

(e) Scientific facts and discoveries with dates, persons and uses,

(f) Current events with places and personalities and

(g) Matching questions of miscellaneous type.

3. Objective Mathematics :

Under this, there will be a series of questions in Practical Mathematics required for day-to-day use. The questions would be such as to test candidates' ability to work out fractions, decimals, percentage and average with quickness and accuracy.

4. Test in typewriting :

There shall be test in typewriting to know that the candidates have fair knowledge in typewriting.

Note : For each group excepting Group 4, 100 marks should be allotted to each group and Group 4 will be allotted with 30 marks making an aggregate to 330 marks.

6. Since in Clause 4 of the Appendix, only it has been mentioned that there shall be test in typewriting to know that he candidates have fair knowledge in typre-writing and no cut of marks for the same has been prescribed, it cannot be said that under the Statute there is any provision for cut off marks in typewriting test and therefore in our opinion the typewriting test has no role in preparation of the merit list.

7. The petitioners have taken plea that there was a Circular in the year 1988 clarifying the meaning of 'fair knowledge and fixing the cut off marks'. The so-called Circular is a letter sent to all the Collectors in response to the letter dated 13.9.1988 of the Collector, Puri on the subject-'clarification regarding holding of type test under O.M.S. Rules, 1985.' In this letter, it has been mentioned that a candidate to be selected shall have to acquire qualifying marks out of the marks prescribed for typewriting test and in order to make it clear, it was decided that if a candidate can type at least 20 words per minute on average from a printed matter lasting for not less than 10 minutes with mistakes not exceeding 11/2 per cent for appointment of Junior Clerk, he should be considered to have fair knowledge in typewriting. But this

. Circular was neither the part of the advertisement nor was it published in official gazette. It was kept by the petitioners in their files and as such the candidates could not get knowledge about the Circular. Therefore, this cannot be treated as a norm fixed for recruitment of Junior Clerks.

8. In the case of Secretary, A.P. Public Service Commission v. B. Swapna and Ors. reported in 2005 (2) Supreme 615, the Hon'ble Supreme Court has laid down that there were two principles in service laws, which were indisputable. Firstly, there could not have been appointment beyond the advertised number; and secondly, the norms of selection could not have been altered after the selection process had started.

9. In the case of Mrs. Madhumita Das v. State of Orissa reported in 100 (2005) CLT 465, this Court has held that once selection process was started the norms fixed in the advertisement could not have been changed and if they were liable to be changed then the same should have been published in the like manner in which initial advertisement was published. Non-publication of the norms changed subsequently after starting of the selection process was violatiye of Article 16 of the Constitution and thus is not sustainable in the eye of law.

10. No doubt, the petitioners could fix any criteria in making selection but those norms should have been to the knowledge of the prospective candidates, and no norm or criteria could be kept confidential and without knowledge to the general public or prospective candidates.

11. The Tribunal has given the following directions in Paragraph 6 of its judgment dated 9.7.2002 :

Hence non-inclusion of the applicants in the second select list cannot be sustained and the decision to exclude them is hereby quashed with the direction that they shall be taken back to their former posts within two months from the date of receipt of a copy of this order. If in this process some candidates included in the second select list and appointed against the vacancies caused due to their removal in March, 2002 are removed from their posts they may be adjusted in existing or future vacancies at the disposal of the Collector or in other offices in the district for which requisition might be received by him. Such vacancies should be excluded from the next advertisement by obtaining government orders for relaxation of Rules by invoking Rule 14 of the OMS Rules. The post service rendered by the applicants shall count for pension and other service benefits but they shall not be entitled to any back wages for the period they were out of service since they had not performed any duties during that period.

Further, on the application of the intervenors, the Tribunal has clarified vide order dated 10.1.2003 to the effect that while passing the order dated 9.7.2002 disposing of the O.As. it had not quashed the second list but had quashed the non-inclusion of the applicants in that list on the ground that they had not possessed the minimum speed of typewriting, as no indication to that effect was given in the advertisement and no decision in that regard was taken in the meeting of the Recruiting Board before conducting the recruitment.

12. In view of the facts discussed above, we do not find any illegality, impropriety or manifest error of law in the impugned judgment and order passed by the Tribunal.

The Writ Petitions are misconceived and are therefore dismissed.

Pradip Mohanty, J.

13. I agree.