Dismissed

Dr.Subas Chandra Parija v. Chancellor,Ouat,Bbsr

Orissa HC27 Jun 2023WP(C)/2808/2022

Case brief

AI extract

What is this about?

Petitioner challenged selection circulars and criteria for the post of Dean seeking a fresh selection process. Having applied and participated in the interview after the criteria were fixed, High Court held him barred from challenging the process, dismissing the writ petition.

What did the court decide?

Writ Petition dismissed. Court held Petitioner barred from challenging selection process after participating in it.

Dr.Subas Chandra Parija Vs Chancellor,Ouat,Bbsr — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C ) No.2808 of 2022

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In the matter of an application under Articles 226 & 227 of the Constitution of India.

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Dr. Subas Chandra Parija …. Petitioner

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-versus-

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Chancellor, OUAT, BBSR & …. Opposite Parties
Others
For Petitioner : M/s. D.P. Nanda, Sr. Advocate
For Opp. Parties : M/s. P.M. Pattajoshi, Advocate
(for Opp. Party Nos.1,2 & 3)
Mr. M.K. Balabantaray, AGA
(for Opp. Party No. 5)
Mr. K.P. Mishra, Sr.Advocate
(for Opp. Party No.7)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 12.05.2023 and Date of Judgment: 27.06.2023

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Biraja Prasanna Satapathy, J .

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The present Writ Petition has been filed inter alia with the

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following prayer.

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< The Petitioner, therefore, prays that the Hon9ble Court be pleased to admit this Writ Petition, issue notice to the Opp. Parties and after hearing the counsel for the Opp. Parties, issue a writ in the nature of mandamus or any other suitable writ quashing:

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A. The impugned circulars dated 22.06.2021 and 08.10.2021 at Annexures-3 & 4.

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B. The impugned notification dated 30.10.2021 at Annexure-8

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C. The interview call letter dated 24.01.2022 at Annexure-9 series to attend the meeting of the Standing Selection Committee; AND

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D. Further direct the Opp. Parties to initiate a fresh the selection process for selection to the post of Dean of the College of Veterinary Science and Animal Husbandry, Odisha University of Agriculture & Technology (OUAT), Bhubaneswar by issuing advertisement/circulars in accordance with the provisions of the statute of OUAT and the judgment dated 27.04.2021 in W.P.(C ) No.10625 of 2019 within a stipulated period fixed by the Hon9ble Court.

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And may pass such other order as deemed fit and proper in the interest of justice.

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And for which act of kindness and the petitioner is in duty bound shall ever pray.=

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2. It is the case of the Petitioner that while continuing as the senior most Professor and Head of the Department of Pharmacology and Toxicology in the College of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar, when the University initially issued an advertisement on 11.06.2019 inviting applications from amongst the Professor and persons of equivalent rank of the University for the post of Dean, faculty of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar, the Petitioner challenging the said Circular approached this Court in W.P.(C ) No.10625 of 2019.

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3. Prior to such filing of the Writ Petition, the Petitioner challenging the order dt.07.03.2019 wherein one Dr. Laxman Kumar Babu was appointed as the interim Dean of the College, had approached this Court in W.P.(C ) No.7084 of

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Page 2 of 16

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This Court vide its judgment dt.27.04.2021 while

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disposing both the Writ Petitions inter alia in Paragraph 26 of

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the judgment held as follows:

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26. In view of the settled position of law, as discussed above, this Court is of the considered view that appointment of opposite party No.5 as in-charge interim Dean, College of Veterinary Science and Animal Husbandry, OUAT, pursuant to office order dated 07.03.2019 under Annexure-7 to the W.P.(C ) NO.7084 of 2019 cannot sustain in the eye of law. Consequentially, the circular dated 11.06.2019 under Annexre-8 to the W.P.(C ) No.10625 of 209 for recruitment of regular Dean by putting a condition that the candidates should furnish, holding administrative posts with supporting documents also cannot sustain. Thereby, the same are liable to be quashed and are hereby quashed. The opposite party-University is directed to issue a fresh advertisement to fill up the post of regular Dean, Faculty of Veterinary Science and Animal Husbandry, OUAT, as expeditiously as possible, preferably within a period of two months from the date of communication of this judgment in consonance with the observations made hereinbefore and in conformity with statutory provisions governing the field.=

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3.1. It is contended that due to quashing of the circular

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issued on 11.06.2019 by this Court in W.P.(C ) No.10625 of 2019, the University issued another circular on 22.06.2021 under Annexure-3 inviting applications from amongst the Professor and persons of equivalent rank for the post of Dean, Faculty of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar.

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3.2. In the said circular, the last date of receipt of application

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was fixed to 19.07.2021. But it is contended that even though the conditions stipulated in circular dt.11.06.2019 was quashed by this Court in W.P.(C ) No.10625 of 2019, but the University once again while issuing Annexure-3, imposed similar condition i.e. RMP experience vide Sl. No.5 of Annexure-

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Page 3 of 16

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A1 to the circular dt.22.06.2021. It is contended that for

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having such experience, a candidate will be entitled to get <10= marks. It is contended that the prescription of such an experience in Annexure-3 is similar to the condition as indicated in the Circular dt.11.06.2019, and quashed by this Court in its judgment as cited ( supra ).

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3.3. It is also contended that even though the last date of making the application in Annexure-3 was 19.07.2021, but while issuing another circular on 08.10.2021 under Annexure4, the last date for receipt of such application was extended to 22.10.2021 without any reason or basis. Not only that, after issuance of Annexures-3 & 4, the University also issued the impugned notification on 30.10.2021 under Annexure-8, prescribing the criteria for selection to the post of Dean, which is not permissible in the eye of law.

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3.4 . Mr. Nanda, learned Senior Counsel appearing for the Petitioner vehemently contended that since the condition imposed in the circular dt.11.06.2019 regarding furnishing of the information with regard to holding of administrative post which is the supporting document was quashed by this Court in W.P.(C ) No.10625 of 2019 in its judgment under Annexure1, similar nature of condition i.e. RMP experience should not

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have been prescribed while issuing the fresh circular on

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Page 4 of 16

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dt.22.06.2021 under Annexure-3. It is also contended that

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since in the Circular issued under Annexure-3, the last date of receipt of application was 19.7.2021, while issuing Annexure-4 on 08.10.2021, the last date of application should not have been extended to 22.10.2021 unilaterally.

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3.5. Learned Sr. Counsel further contended that after issuance of the Circular under Annexures-3 & 4, the University after due approval of the Government issued the impugned notification on 30.10.2021 under Annexure-8 by prescribing the criteria for selection to the post of Dean. It is contended that such belated action by the University in prescribing the selection criteria under Annexure-8, since has been issued much after the issuance of the Circular under Annexure-3 as well as Annexure-4, the selection process initiated under Annexures-3 and 4 is vitiated.

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3.6. Learned Sr. Counsel further contended that even though the Petitioner made his application basing on the Circular issued under Annexure-3 and he was directed to appear before the Standing Selection Committee vide letter dt.24.01.2022 under Annexure-9, but since the condition imposed in the Circular under Annexure-3 with regard to RMP experience is of similar implication, as was earlier reflected in the Circular dt.11.06.2019 under Annexure-2 which was quashed by this

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Page 5 of 16

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Court, the selection process so initiated in terms of Annexure-3

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is not sustainable in the eye of law. Accordingly the Petitioner challenging the Circular issued under Annexures-3 & 4 and the notification issued under Annexure-8 is before this Court.

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3.7. Learned Senior Counsel further contended that the guidelines prescribed in the impugned circular under Annexures-3 & 4 as well as the impugned notification under Annexure-8 since is not in confirmity with the Statutes of Orissa University of Agriculture And Technology, the selection process so initiated under Annexures-3 & 4 is liable for interference of this Court.

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4. Mr. P.M. Pattajoshi, learned counsel appearing for the University on the other hand made his submission basing on the stand taken in the counter affidavit.

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It is contended that since the condition imposed in the

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earlier Circular on 11.06.2019 which was challenged by the Petitioner before this Court in W.P.(C ) No.10625 of 2019 was interfered with, the University on receipt of the said order issued a fresh circular on 22.06.2021 under Annexure-3. The said Circular under Annexure-3 was issued with due approval of the Hon’ble Governer/Chancellor of the University.

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4.1. Subsequent to issuance of Annexure-3, the Board of

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Management of the University approved the selection criteria for

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Page 6 of 16

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the post of Dean vide its resolution dt.28.07.2021 under

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Annexure-E/2 and after due approval of the same by the Government vide letter dt.05.10.2021 under Annexure-F/2, the University issued the criteria for selection under Annexure-8 to the Writ Petition.

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4.2. Mr. Pattajoshi further contended that the condition indicated in the Circular dt.11.06.2019 which was interfered with by this Court in the earlier Writ Petition was never inserted in the Circular issued on 22.06.2021 under Annexure-3 as well

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as on 08.10.2021 under Annexure-4.

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Subsequently with due approval of the Government, the selection criteria for the post of Dean was finalised with issuance of notification on 30.10.2021 under Annexure-8. After fixation of such criteria for selection, all the candidates who had made their applications pursuant to Annexure-3 were issued with the call letter to appear before the Standing Selection Committee.

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4.3. Mr. Pattajoshi, learned counsel contended that the petitioner since pursuant to Annexure-3 made his application for the post of Dean and also participated in the interview in terms of Annexure-9, the Petitioner after such participation in the selection process, is not permitted to challenge the

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Page 7 of 16

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stipulations contained under Annexures-3 & 4 as well as the selection criteria issued under Annexure-8.

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4.4. It is also contended that prior to conducting the interview

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in terms of Annexure-9 so issued on 24.01.2022, since the selection criteria was already fixed, no illegality can be found with the action of the University. However, it is vehemently contended that since the Petitioner in terms of Annexure-3 participated in the selection process, in view of the law laid down by the Hon’ble Apex Court as well as by this Court, the Petitioner is not permitted to turn back by challenging the stipulation contained in Annexures-3 & 4 as well as the criteria fixed under Annexure-8.

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4.5 . Mr. Pattajoshi also contended that even though vide Annexure-4, the last date for making the application was extended to 22.10.2021, but no further application was made in terms of the said Circular issued on 08.10.2021 under Annexure-4. All the candidates who had made their applications in terms of Annexure-3 including the Petitioner of the present case were only called to appear before the Standing Selection Committee vide Annexure-9 series. Accordingly, it is contended that the Writ Petition at the instance of the Petitioner is not maintainable.

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Page 8 of 16

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5. Mr. M.K. Balabantaray, learned Additional Government

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Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.5.

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It is contended that while issuing the earlier circular on

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11.06.2019 under Annexure-2, the condition <Holding of administrative post with the supporting documents= was challenged by the present Petitioner in W.P.(C) No.10625 of 2019. This Court when quashed the said condition while disposing of the matter vide its judgment under Annexure-1. the fresh circular was issued on 22.06.2021 under Annexure-3.

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5.1. Subsequent to issuance of Annexure-3 and in

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continuation therein, Annexure-4 was issued by extending the last date of application. In the meantime, the criteria for selection to the post of Dean was approved by the Government on 05.10.2021 and after such approval by the Government, the criteria for selection was notified on 30.10.2021 under Annexure-8. It is contended that prior to conducting the selection in terms of Annexure-9 series, the selection criteria since was already published; no illegality can be found with the said selection process.

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5.2. Mr. Balabantaray, learned A.G.A further contended that

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since the petitioner in terms of Annexure-3 made his application and also participated in the interview basing on

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Page 9 of 16

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Annexure-9, in view of the settled law of this Court as well as of the Hon’ble Apex Court, the Petitioner is not supposed to challenge the criteria for selection so indicated in Annexures3,4 & 8. Accordingly, it is contended that the Writ Petition at the instance of the Petitioner is not entertainable.

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6. Mr. K.P. Mishra, learned counsel appearing for Opp. Party No.7 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the said Opp. Party.

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Mr. Mishra, contended that basing on the call letters issued under Annexure-9 series not only the Petitioner but also all the candidates appeared before the Standing Selection Committee and participated in the selection process. Opp. Party No.7 on being found suitable was appointed as Dean, College of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar vide notification issued on 15.02.2022 under Annexure-A/7 .

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6.1. It is contended by Mr. Mishra, learned Sr. Counsel that since the Petitioner in terms of Annexure-3 made his application and also participated in the selection process in terms of Annexure-9, in view of the decision of the Hon’ble Apex Court rendered in the case of Madras Institute of Development Studies and Another Vs. Dr. K. Page 10 of 16

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Sivasubramaniyan and others , reported in 2016 (1) SCC

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454 , as well as the decision of this Court rendered in the case of Kunilata Dutta Vs. State of Orissa and Others , reported in 2010 (Suppl. II )OLR 437 , the Petitioner cannot be permitted to challenge the circular issued under Annexures-3 & 4 as well as the selection criteria fixed under Annexure-8.

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Hon’ble Apex Court in the case of Madras Institute of Development Studies , in Paragraphs 13 to 18 has held as

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follows:

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13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.

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14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

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15. In G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) <15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against

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the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal case [Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425] where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9)

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89. … It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.9= 16. In Madan Lal v. State of J & K, similar view has been reiterated by the Bench which held that :SCC p.493, para 9)

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<9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.=

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17. In Manish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16)

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<16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.= 18. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129] , recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24)

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<24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents.=

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Similarly, this Court in the case of Kunilata Dutta, in

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Paragraph 12 has held has follows.

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<12. Additionally, it is seen that the Petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the Petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Utteranchal and Others , (2008) 4 SCC 171 = 2009 AIR SCW 3265; the Apex Court held that when the petitioner took a chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge the selection process. In other words, when the Petitioner has applied for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is stopped and precluded the questioning the said selection process.=

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7. I have heard Mr. D.P. Nanda, learned Sr. Counsel

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appearing for the Petitioner, Mr. P.M. Pattajoshi, learned

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counsel appearing for Opp. Party Nos.2 & 3, Mr. M.K. Balabantaray, learned Additional Government Advocate

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appearing for Opp. Party No.5 and Mr. K.P. Mishra, learned Sr. Counsel appearing for Opp. Party No.7.

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On the consent of the learned counsel appearing for the parties, the matter was finally heard at the stage of admission and disposed of by the present order.

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8. Having heard learned counsel for the parties and after going through the materials available on record, it is found that challenging the stipulation contained in the Circular dt.11.06.2019 so issued by the University under Annexure-2, the petitioner had earlier approached this Court in W.P.(C) No.10625 of 2019. This Court vide its judgment dt.27.04.2021 under Annexure-1 quashed the condition under challenge with a direction to issue a fresh advertisement to fill up the post of regular Dean, faculty of the College of Veterinary Science and Animal Husbandry, OUAT, Bhubaneswar as expeditiously as possible, preferably within a period of two(2) months from the date of communication of the judgment.

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8.1. After receipt of judgment so rendered under Annexure-1, the University issued a fresh circular on 22.06.2021 under Annexure-3 inviting applications for the post of Dean. It is found that in terms of the circular issued on 22.06.2021 under

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Page 14 of 16

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Annexure-3, the Petitioner made his application for the post of Dean. It is also found that after issuance of Annexure-3

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vide circular dt.08.10.2021 under Annexure-4, though the last date of application was extended to 22.10.2021, but the same was never challenged by the Petitioner at any point of time. Not only that, the selection criteria for the post of Dean so issued vide notification dt.30.10.2021 under Annexure-8 was also never challenged by the Petitioner. Only when the Petitioner was issued with the letter dt.24.01.2022 under Annexure-9 directing him to appear before the Standing Selection Committee for selection to the post of Dean fixing 29.01.2022 for such appearance the present Writ Petition was filed challenging the stipulation contained under Annexures-3,4 & 8 on 27.01.2022.

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8.2. It is also found from the record and not disputed by the learned Senior Counsel appearing for the Petitioner that pursuant to Annexure-3, the Petitioner not only made his application but also pursuant to Annexure-9, he participated in the selection process. In view of the decision of the Hon’ble Apex Court as well as this Court as cited (supra), the Petitioner after such participation in the selection process is not permitted to challenge the stipulation contained in Annexures-3 & 4 as well as in Annexure-8. This Court also is of the view that since

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prior to conducting the selection process in terms of Annexure9 issued on 24.01.2022, the selection criteria was already fixed vide notification dt.30.10.2021 under Annexure-8, no illegality

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is also there with the University in fixing such criteria for selection prior to proceeding with the selection process.

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8.3. Be that as it may, since the Petitioner in terms of Annexure-3 made his application and participated in the selection process, the Petitioner in view of the decision as cited (supra) is not permitted to challenge the stipulation contained in Annexures-3,4 & 8.

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9. Therefore, this Court is not inclined to entertain the Writ Petition with the prayer as indicated here-in-above and dismiss the Writ Petition.

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(Biraja Prasanna Satapathy) Judge

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Orissa High Court, Cuttack Dated the, 27^th June,2023/sangita

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Signature Not Verified

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Digitally Signed Signed by: SANGITA PATRA Reason: AUTHENTICATION OF ORDER Location: hIGH cOURT OF ORISSA, CU TTACK Date: 03-Jul-2023 18:23:26

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