Dismissed

Hurshikesh Panda v. Principal Chief

Orissa HC16 Apr 2019WP(C)/6935/2003

Case brief

AI extract

What is this about?

This common order dismissed writ petitions challenging the dismissal of applications for Forest Guard posts. The High Court held that the Tribunal correctly excluded petitioners who lacked the required physical fitness, specifically a chest expansion of 5 cm, referencing prior Supreme Court precedents limited to later-discovered errors.

What did the court decide?

Writ petitions dismissed as devoid of merit; connected miscellaneous cases disposed of accordingly.

Hurshikesh Panda Vs Principal Chief — Pension and Retirement Benefits | Orissa HC (2019)

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W.P.(C) No. 6935 of 2003

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W.P.(C) Nos. 6935 of 2003, 10195 of 2005 and 10196 of 2005

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16.04.2019

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Since the issue involved and the prayer made in all these writ petitions are similar, they are taken up together and disposed by this common order.

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Heard Mr. Panda, learned counsel for the petitioners and Mr. M.S. Sahoo, learned Additional Government Advocate for the State-opposite parties.

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By way of these writ petitions, the petitioners have challenged the judgment and order dated 27.03.2003 passed by the learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.2692(C) of 2000, 2694(C) of 2000 and 2693(C) of 2000 whereby the learned Tribunal has dismissed the original applications preferred by the applicants (petitioners herein).

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Learned counsel for the petitioners contended that the Tribunal has seriously committed an error ignoring the notice issued under Annexure-2, which is reproduced hereunder:

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“ NOTICE

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Candidates are requested (those who have qualified in the written test) to contact the Chief Dist Medical Officer, Gajapati on 17^th & 18^th March, 1999 for their physical fitness certificate purpose. The candidates those who were fit during physical standard examination by the Chief Dist Medical Officer are requested to attend for cycling test on 19.3.99 by 4.30 P.M. sharp along with their own cycles at Paralakhemundi-Cumm Road (Near Christian Eye Hospital) Paralakhemudi.

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Those who have qualified in the cycling test are to be allowed for walking test on 21.3.99 by 4.30 A.M. in the same venue.

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Those who have qualified the walking test will be allowed for viva-voce test on 26^th & 27^th March, 1999 by 10.30 A.M. in the office of the Divisional Forest Officer, Paralakhemundi Division.”

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Learned Counsel for the petitioner contended that the opposite parties, in their counter affidavit which has been filed before the learned Tribunal, has clearly admitted in para-3 that

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“3. That in reply to the averments made in para 6(v) of the original application, it was submitted that the averments made in the para is not a fact that on receipt of physical standard examination report from the Chief Dist. Medical Officer, Gajapati the same has been published. It has just kept in the office for giving marks as per recruitment rules, 1998 above. The list enclosed to this application as annexed by the applicant has never been published.”

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5.1. It further reveals from the counter affidavit filed by the State that it has been specifically denied that after qualifying the physical standard examination the applicant as per Notification under Annexure-II (to the original application) appeared other tests. It is further stated that the Physical standard examination made by the Chief Dist. Medical Officer, Gajapati has not been declared at any time. All the candidates appeared before the Chief Dist. Medical Officer, Gajapati for physical standard examination, have attended subsequent tests like cycling, walking, viva-voce tests including the applicant and the result was not declared.

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5.2. On completion of recruitment procedure, the then Divisional Forest Officer, Paralakhemudi prepared the merit list of the candidates himself and sent the same to the Conservator of Forests, Berhampur Circle vide Memo No.3343 dated 11.6.99. The physical measurement list prepared by the Chief Dist. Medical Officer, Gajapati, Paralakhemundi has not been thoroughly scrutinized by the then Divisional Forest Officer, Paralakhemundi and four candidates as detailed below who did not have the required chest measurement have been included in the selection list wrongly.

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Sri Hrusikesh Panda of Secretary category (Sl.No.7)

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Sri Rabi Kumar Sahu of S.E.B.C. category (Sl.No.3)

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Sri Ajaya Kumar Pradhan of S.C. category (Sl.No.1)

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Sri Trinath Karji of S.T. category (Sl.No.2)

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5.3. Hence once again the Selection Board meeting was convened on 25.5.2000 to sort out the discrepancies and the selection Board met under the Chairmanship of the Divisional Forest Officer with the Dist. Welfare Officer, Gajapati, Paralakhemundi, Officer-in-charge-cum-Representative of Collector, Gajapati, Paralakhemundi as Members and the Asst. Conservator of Forests, Mohana as Member Secretary. The Selection list prepared earlier was thoroughly scrutinized with reference to the tests, examinations etc. conducted. After detailed discussion and on scrutiny to physique measurement report of the Chief Dist. Medical Officer, Gajapati, Paralakhamundi, it is observed that the above candidates did

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not have the required chest measurement but were selected. Hence, the Committee decided that those candidates should be rejected.

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5.4. The Committee further took the decision that the candidates having 5 cms. difference in the chest measurement in between unexpanded and expanded with minimum 81 cms at unexpanded stage are to be selected as per rule 10(1) of the recruitment rule. The expanded chest measurement would be rounded up to the next higher sight in case it is 0.5 cm. or above i.e. 1.5. would be treated as 2. So accordingly the merit list was prepared category wise and was sent vide Memo No.3343 dated 11.6.99 to the Conservator of Forests, Berhampur Circle. In each category the 80 point roster under O.R.V. Act was taken into account. Accordingly, a fresh selection list has been prepared with the name of 16 candidates and sent to the Conservator of Forests, Berhampur Circle vide office memo no.2419 dated 25.5.2000, in which the applicant Sri Ajaya Kumar Pradhan bearing Roll No.0237 of S.C. Category though shown selected earlier was subsequently cancelled by the Selection Board, because he did not get the requisite physical standard i.e. chest measurement expansion by 5 cm. As per the recruitment rules clause 10(1), for the post of Forest Guard, the minimum expansion of chest should be 5 cms. Hence the applicant’s name was excluded in the revised selection list prepared on 25.5.2000.

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5.5. Mr. Panda, learned counsel for the petitioners has also taken us to the rejoinder filed by the petitioner and contended that the averments made in para-3 of the counter affidavit are all false and fabricated. A list containing the names of successful candidates in physical standard examination was published in the official notice board to which the applicant copied out and typed out and the type copy is Annexure-3 to the original application. As the successful candidates in physical test were only required to attend for cycling test as instructed in the notice, so unless the result is published, a candidate cannot know as to whether he has succeeded in the Physical test or not. In the physical, test all total 34 candidates were qualified out of total number of 51 candidates appeared. In the said list the name of the applicant shown at Sl.No.5 under General Category.

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5.6. It is also submitted that the averments and replies made in para-4 of the counter are all false, misleading and fabricated and also de hors the Rules. The candidates those who qualified in the Physical test only appeared the subsequent tests. As per the notice under Annexure-2 the candidates found fit during physical standard examination by the C.D.M.O. were required to attend the cycling test on 19.03.99 at 4 P.M. sharp along with their own cycles at Paralakhemudi-Gumma Road (Near Christian Eye Hospital). It was further indicated in the said notice that those who qualified in the cycling test were to be allowed for walking test on 21.3.99 by 4.30 A.M. on the

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same venue. It was also indicated therein that those who qualified the walking test would be allowed for viva-voce on 26^th and 27^th March, 1999. As the selection was phase wise, so a candidate who qualified in one test was allowed to appear the subsequent test. Therefore, the candidates those who were qualified in the physical standard examination only allowed/called to appear the cycling test and so on. Rule-14 Sub-Rule (f) of 1998 Rules specifically provides that candidates who qualify in the written and Physical tests shall appear in viva-voce to be conducted by the Selection Board. Therefore, the candidates those who have qualified the written tests and subsequent tests i.e. Physical tests were only appeared in the viva-voce. Therefore, the above falsifies the averments made in their counter affidavit. If all the candidates appeared before the C.D.M.O. for physical standard were allowed to appear in the subsequent tests like cycling walking, viva-voce etc. then the entire selection would be vitiated. Thus, the applicant being succeeded in all the tests, i.e. written as well as different physical tests was allowed to appear in the viva-voce before the selection Board.

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He further drew our attention to sar counter to rejoinder dated 26.10.2002 which has been filed by the opposite parties Nos.1 to 6 before the learned Tribunal, which is reproduced hereunder:

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“16. That in reply to the averments made in para 1(17)(VI) to the rejoinder, it is submitted that the Chief Dist. Medical Officer, Gajapati,

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Paralakhemundi has submitted the report in his letter No.1769 dated 19.3.99 Annexure-D to the counter and list of 34 successful candidates out of 51 candidates have been prepared and announced on 19.03.99 in presence of the candidates those who appeared before the Chief Dist. Medical Officer, Gajapati, Paralakhemundi for physical fitness examination. No such notice has been punished in the Notice Board.

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That in reply to the averments made in para 1 (17)(VII) to the rejoinder, it is submitted that 34 successful candidates announced on 19.3.99 F.N. have appeared all the subsequent tests i.e. cycling test on 19.3.99 A.N. Walking test on 21.3.99 at 4.30 A.M. and viva-voce on 26^th & 27^th March, 1999. In para 4 of the counter all the candidates appeared before the Chief Dist. Medical Officer, Gajapati, Paralakhemudi for physical slandered examination have attended subsequent tests mentioned but only the 34 successful candidates qualified in the physical test made byte Chief Dist. Medical Officer, Gajapati, Paralakhemundi announced on 19.3.99 have appeared in subsequent tests mentioned above.”

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5.7. He has relied upon Rules 10(2) and 14 of the Orissa Subordinate Forest Service (Method of Recruitment and Conditions of Service of Foresters) Rules, 1998, which reads as under:

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“ 10. Physical fitness — (1) xx xx xx

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(2) The candidates shall be examined by the Chief Medical Officer of District to testify that they possess sound health and general physical fitness for arduous outdoor work essential for the service.

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Xx xx xx

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Educational Qualification .— A candidate must have passed +2 Science from a recognized University/institution.”

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Learned Additional Government Advocate, however, supported the impugned order and referred to the aforesaid contentions made in the counter affidavit filed before the learned Tribunal.

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We have heard learned counsel for the parties and perused the record.

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While deciding the original application, the learned Tribunal, in paras-6, 7, 8 and 9, has observed as under:

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“6. The learned counsel for the aforesaid 3 (three) applicants however, contended that once merit list was prepared and published, the applicants having been selected, the list cannot be changed. According to him, the principles of estoppels forbids the respondents to convene a fresh Board and change the list published earlier. It is further stated that the list was prepared by the C.D.M.O. was tampered with and deliberately their chest measurement were not written in accordance with the measurement taken at the time of physical test. Having said thus, it is contended that the applicants should be sent for training and given the appointments of Forest Guards.

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The learned Government Advocate has resisted its saying that as the list of the C.D.M.O. itself was not in support of the applicants and their physical standard is not in accordance with the provisions of Rule 10(1) of the Rules, they have been rightly excluded from the list. It is further contended that the earlier list having been prepared de-horse the Rules the same is bad and can be changed by the respondents. Almost to the same effect is the stand

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taken by the learned counsel who appears for the private respondents (the applicant in C.A. 739 (C)/2002.

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We perused the O.As, annexures submitted by the respective parties and also written argument wherein the aforesaid contention are raised. Our attention also was drawn to the case of Sanatan Gouda vrs. Berhampur University and others, A.I.R. Supreme Court, 1075, Shri Krishna V.Kurukshetra University A.I.R. 1976, Supreme Court 376 and Prakash Chandra Kuanr V. Secretary, Board of Secondary Education Orissa and others, 1996 (II) O.L.R. page, 268. Basing on these decisions it is contended that once they have been included in the merit list the same cannot be changed. On perusal of the aforesaid cases it is found that the candidates in those cases were wrongly declared as successful and thereafter they have taken part in the higher education. After a gap of 2 to 3 years it was stated that they have been declared wrongly as successful. In these circumstances the principles of estoppels was attracted. In the present case, however, though a select list was prepared and sent for approval before any action was taken thereon, it was found to be defective and hence the same was corrected. In the circumstances, therefore, the principles decided in the aforesaid cases cannot be of any help to the applicants of the aforesaid three O.As.

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Though a contention has been made indicating that the Selection Board cannot introduce a new standard not prescribed in the Rule, we do not give any weight to the aforesaid contention as in these cases no such occasion had arisen. Though the same decisions were cited in this regard, we feel it necessary to refer to them for the aforesaid reasons.”

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Having regard to the facts and circumstances of the case, we are of the considered opinion that the error which has

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been committed by the earlier committee was rectified by the subsequent committee and it was found that the petitioners were not matching with the criteria (physical fitness) provided in Rule 10(2) and expansion of chest by 5 centimetre was not there in case of the petitioner. Learned counsel for the petitioner could not also produce any material to show that the petitioner, in fact, satisfies the requirement under Rule 10(2), more particularly, expansion of chest by 5 cm.

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In that view of the matter, it will not be appropriate to interfere with the impugned order passed by the learned Tribunal by re-appreciating the facts which is not permissible under Article 227 of the Constitution of India. Even otherwise, we do not find any good ground to interfere with the impugned order.

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10.1. The writ petitions stand dismissed being devoid of any merit. All connected Misc. Cases/I.As. are disposed of accordingly.

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.…….......……………… ( K.S. Jhaveri ) Chief Justice

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…………………..……… ( K.R. Mohapatra) Judge

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SKJ

Hurshikesh Panda v. Principal Chief

Case brief

What is this about?

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Hurshikesh Panda v. Principal Chief

Case brief

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