KAUSHIK PATNAIK Vs. STATE OF ORISSA
LAWS(ORI)-2021-3-16
HIGH COURT OF ORISSA
Decided on March 08,2021

Kaushik Patnaik Appellant
VERSUS
STATE OF ORISSA Respondents

JUDGEMENT

B.R. Sarangi,J. - (1.) Dr. Kaushik Patnaik, who was a candidate for the post of Dental Surgeon in Group 'A' of Odisha Medical Services (Dental) Cadre under unreserved category, has filed this writ petition seeking to quash communication dated 16.11.2018 under Annexure-12, by which his candidature has been rejected on the ground of overage due to non-submission of service certificate from Government or DHS, and further seeks for a direction to publish the result of the petitioner in the written examination, which was held on 06.05.2018 and to provide the marks awarded to him forthwith.
(2.) The concise statement of fact is that the Orissa Public Service Commission-opposite party no.2 issued an advertisement vide Annexure-1 in its website for recruitment to the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre under Health & Family Welfare Department inviting online applications from the prospective candidates through the proforma application to be made available in the website from 20.03.2018 to 07.04.2018. By the time the advertisement was issued, the petitioner was rendering service as a Senior Resident in the Department of Periodontics at SCB Dental College & Hospital, Cuttack. The petitioner, being eligible for such post, sought permission from the Principal, SCB Dental College & Hospital, Cuttack to appear in such examination to be conducted by opposite party no.2. The Principal, vide letter dated 29.03.2018, certified that the petitioner, MDS is working as Senior Resident in the Department of Periodontics at SCB Medical College & Hospital, Cuttack since 10.08.2015 and continuing till that date, and that the institution has "No Objection" for him to apply for the post of Assistant Dental Surgeon under Odisha Public Service Commission (OPSC). 2.1 After obtaining such permission, the petitioner applied for the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre under UR category. On receipt of such application, opposite party no.2 allotted registration no. 15171849744 and roll no. 101382 to the petitioner, and consequentially issued a notice on 01.05.2018 vide Annexure-4 regarding programme of examination informing therein that the candidates are admitted to the written examination scheduled to be held on 6th May, 2018. It was also instructed to the candidates to download their "admission certificate" and "instruction to candidates" from the website of the Commission from 01.05.2018 onwards. The above notice would show that the roll no. 101382 of the petitioner was earmarked for the examination centre at "Saraswati Sishu Vidya Mandira, Mahanadi Ring Road, Chahata Ghata, Tulasipur, Cuttack." Pursuant to the instruction vide Annexure-4, the petitioner downloaded "admission certificate" and "instruction to candidates" from the website of the Commission. On 06.05.2018, the petitioner appeared in the written examination in the scheduled examination centre. 2.2 The opposite party no.2, vide notification dated 20.06.2018 at Annexure-6, intimated that the verification of original documents of the shortlisted candidates to the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre under Health & Family Welfare Department, would be held in the office of the Commission on 28.06.2018 and 29.06.2018 and instructed the candidates to come with all original certificates/documents as per para-10 of the advertisement, duly filled in the attestation form and submit the same in person on the day of verification. The detail programme of the verification, intimation letter, and attestation form were available in the website of the Commission. In terms of the direction and instruction contained in Annexue-6, the petitioner downloaded the programme of the verification, intimation letter and attestation form from the website of the Commission. As per programme of verification, his roll no.101382 was fixed to 2nd session of 28.06.2018 under the Team No. III. The opposite party no.2, vide notice dated 09.08.2018, recommended the names of 171 candidates as per the list enclosed in order of merit for appointment to the posts of Dental Surgeon Group-"A" (Jr.) of Odisha Medical Services (Dental) Cadre under opposite party no.1, pursuant to the advertisement at Annexure-1. But the petitioner found that his roll no.101382 was not there in the list and his name was not recommended. 2.3 The petitioner sought information under the Right to Information Act, 2005 (for short "RTI Act, 2005") regarding the final cutoff marks of UR, SC & ST recommended candidates and the marks awarded to them. The Public Information Officer of opposite party no.2, vide letter dated 27.08.2018, intimated that final cutoff marks of UR, SC and ST recommended candidates and mark of the applicant is available in the website of the Commission. Prior to seeking information under the RTI Act, 2005, the petitioner had checked the website where his marks were not available. After receipt of letter dated 27.08.2018, the petitioner downloaded the mark sheet, but his marks were not available in the list published by the opposite party no.2 relating to marks secured by the candidates in the written examination. The result of the petitioner was not published nor did his name appear in the list. After obtaining the marks of finally selected candidates, the petitioner applied to the PIO, under the RTI Act, 2005 on 10.08.2018 about his marks secured in the written examination. But, he was intimated by opposite party no.2, vide letter dated 16.11.2018, that his candidature was rejected on the ground of overage due to non-submission of service certificate from the Government or DHS. The petitioner, thereafter, submitted representation to the Chairman of opposite party no.2 on 26.08.2020, but, as no action was taken thereon, the petitioner has approached this Court by filing this writ petition.
(3.) Mr. S. Patra-1, learned counsel for the petitioner contended that opposite party no.2-OPSC, having allowed the petitioner to appear in the written examination and participate in the process of selection, pursuant to advertisement at Annexure-1, for the post of Dental Surgeon in Group 'A' (Jr.) of Odisha Medical Services (Dental) Cadre, should not have said vide impugned communication dated 16.11.2018 that the petitioner's candidature was rejected on the ground of overage due to non-submission of service certificate from Government or DHS. It is contended that such communication is hit by principle of estoppel, in as much as the advertisement does not in any way require that in-service candidates were to furnish service certificate from the Government or DHS, save and except the upper age limit shall be relaxed up to 5 years in case of in-service doctors serving under State Government or State Government Undertaking on ad hoc or contractual basis. Admittedly, the petitioner is continuing as a Senior Resident and to substantiate the same, along with his application, he had enclosed the certificate issued by the Principal, SCB Dental College & Hospital, Cuttack. Thereby, the employer of the petitioner having satisfied that the petitioner is rendering service as a Senior Resident in the Department of Periodontics at SCB Dental College & Hospital, Cuttack, rejection of his candidature, on the ground of overage due to non-submission of service certificate from Government or DHS, cannot sustain in the eye of law. It is further contended, the ground taken by opposite party no.2 that the Principal, who has issued the certificate, is not the competent authority, rather, the petitioner ought to have produced the certificate from the Government or DHS, who are competent to do so under law, and in absence of that, the candidature of the petitioner has been rightly rejected, has no basis and is not legally tenable, in view of the fact that nothing has been stated in the advertisement with regard to competent authority to certify that the candidate has been rendering service in the Government or Government undertaking. In absence of the same, the rejection of the candidature of the petitioner vide Annexure-12 cannot sustain in the eye of law.;


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