SUSHANTA KUMAR MALLIK Vs. STATE OF ORISSA AND ANR.
HIGH COURT OF ORISSA
Sushanta Kumar Mallik
State of Orissa And Anr.
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R.N. Misra, J. -
(1.) 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 under Section 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.
(2.) 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 under Section 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.
(3.) 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.;
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