Orissa High Court: In a review petition with a prayer to review/ recall the Judgment dated 19-05-2023, whereby the select list of the short-listed candidates for the appointment to the post of Assistant Section Officer (‘ASO’) published by the Odisha Public Service Commission (‘OPSC’) was quashed and the OPSC was directed to redraw the select list, A.K. Mohapatra, J., dismissed the review petition and the fresh writ petition.
In a writ petition, 16 candidates (petitioners) had questioned the selection process adopted by the OPSC while short-listing the candidates, who had submitted their candidature pursuant to Advertisement No.26 of 2021-22 issued by the OPSC for the appointment to the post of ASO in Group-B of Odisha Secretariat Service under Home Department on the principal ground that the procedure adopted by the OPSC for second stage of selection, i.e., viva-voce test as illegal, arbitrary and dehors the rules. The petitioner’s case was that in total 796 posts of ASO in Group-B Cadre of Secretariat Service were advertised to be filled up, however, the final list of short-listed candidates reflected the names of 1104 candidates (1.5 times of the advertised vacancy category wise), thus, it was alleged that the final list was prepared illegally and contrary to the provisions of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 (‘the Rules’). It was alleged that the OPSC, without having the authority of law and contrary to the Rules, had fixed minimum qualifying marks of each subject in the written test.
The Court vide impugned Judgment in the said petition had quashed the merit/select (short-listed) list published vide Notice dated 07-11-2022 by the OPSC for document verification and skill test of the selected candidates. Further, the Court directed the OPSC to redraw the list of the short-listed candidates strictly in terms of Rule-6(5) and Rule-6(6) of the Rules and on the basis of the aggregate marks secured by the candidates within a period of two months from the date of judgment.
The candidates who were short-listed after conclusion of the first phase of selection process and were supposed to appear in the second phase of the selection, i.e., document verification and skilled test, approached the Court with the review petition to review/ recall the impugned judgment dated 19-05-2023.
Grounds of Challenge
i. The present Petitioners as well as the short-listed candidates of the list published vide Notice dated 07-11-2022 containing 1104 number of candidates were not arrayed as Opposite Parties in the earlier writ petition and nonjoinder of the short-listed candidates was an error apparent on the face of the record.
ii. The advertisement dated 31-12-2021 contained a clause, i.e., Clause-6(c) providing that “the Commission shall be competent to fix up the qualifying marks in any or all the subjects of the examination”. Therefore, the petitioners were seeking review of the impugned judgment on the ground that the OPSC being the recruiting agency was competent to fix up the qualifying marks in order to short list the candidates for appearing in the skill test and, as such, there is no illegality in the press note.
The Court analysed the scope of the review petition and said that no doubt the review is a creature of the statute. The Court perused the Order-47, Rule-1 of the Code of Civil Procedure, 1908 (‘CPC’) which provides for application for review of judgment. The Court also said that the explanation to the Order-47, Rule 1 of the CPC revealed that the fact that the question of law involved in the Court judgment, which has been reversed or modified by the subsequent decision of a superior Court in another case, shall not be a ground for review of such judgment. The Court referred to various authorities wherein the Supreme Court held that the review jurisdiction is extremely limited and unless there is a mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no such elaboration and stairs at its face. It was also cautioned that the review application shall not be used as an appeal in disguise and that the review does not permit rehearing the matters on merits.
The Court explained that to be impleaded as a party in a proceeding, it is the well-established proposition of law that the person who is taking the plea of nonjoinder of party has to prima facie establish that he is a necessary party to the proceeding and in whose absence the lis could not have been decided. The Court also referred to Order 1 Rule 3 of the CPC which provides as to who may be joined as defendant. The Court said that no suit or proceeding can be decided effectively in the absence of party against whom relief is sought for by the petitioner or plaintiff. They are the necessary parties to the suit. Regarding the question that whether the review petitioners were necessary parties to the writ petition filed earlier by the private opposite parties, the Court noted that the final merit list had not been published by the time the earlier writ petition was filed. The Court also said that by the time the judgment dated 19-05-2023 was delivered, no legal right was crystallized in favour of the Review Petitioners as the selection process for recruitment to the post of ASOs was not concluded and no finality was attained. Therefore, the Court said that by no stretch of imagination, it could be concluded that the selection for appointment to the post of ASO by the OPSC was final by mere publication of a Notice dated 07-11-2022 and thus a valuable right was accrued in favour of the Petitioners. The Court also added that mere reflection of name in the notice of short-listed candidates for the next phase of selection did not confer any legal right on the Review Petitioners.
Thus, the Court said that in the absence of any legal right to finally claim for appointment, the petitioners did not acquire a right to be appointed to the post of ASOs for which the selection process was on going. The Court stated that “mere inclusion of the name in the select list does not confer any right to claim for appointment”. Therefore, the Court concluded that the Review Petitioners were not necessary parties to the earlier writ petition.
The Court said that the short-listed candidates were all aware of the pendency of the earlier writ petition as the selection for appointment to the post of ASO was hanging for quite some time, however, no effort was made by them to implead themselves as parties to the earlier writ petition. The Court added that on the contrary, they preferred to wait and watch as fence-sitters. After the final judgment was delivered by holding that the selection process adopted by the OPSC is dehors the relevant rules, the Review Petitioners approached the Court by filing the present review petition as well as connected writ petition only with the intention to delay the selection further.
As the Court had concluded that the Review Petitioners were not necessary party to the earlier writ petition, the Court found no ground whatsoever to entertain the review petition as well as the writ petition filed by the Petitioners. Hence, both the review petition as well as writ petition were dismissed.
[Kabita Jena v. Rajat Kumar Mishra, 2023 SCC OnLine Ori 5217, Decided on: 31-07-2023]
Advocates who appeared in this case :
For the petitioner: Senior Advocate Budhadev Routray, Advocate S. K. Samal, Advocate S.P. Nath, Advocate S. Routray, Advocate S. Sekhar, Advocate J. Biswal and Advocate A.K. Das;
For the opposite parties: Additional Standing Counsel Tarun Pattnaik, Senior Advocate P.K. Mohanty.