KAUSHIK PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(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).

(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.