HIGH COURT OF ORISSA: CUTTACK

W.P.(C) No.4569 OF 2022

In the matter of an application under Article 226 of the

Constitution of India.

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Sanjeev Kumar Sahu … Petitioner

- Versus -

State of Odisha and Others … Opposite parties

For Petitioner … M/s. U.C. Mishra, A. Mishra

A. Mishra & J.K. Mahapatra

For Opposite Parties … Mr. R.N. Mishra,

Additional Government Advocate
(For O.P. No.1)

M/s. S.B. Jena & C.K. Sahoo

(For O.P. No.2).

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PRESENT:

THE HONOURABLE SHRI JUSTICE BIRAJA PRASANNA SATAPATHY

Date of hearing: 15.09.2022 Date of order : 01.11.2022

Biraja Prasanna Satapathy, J.

1. I have heard Mr. U.C. Mishra, learned counsel appearing

for the Petitioner, Mr. R.N. Mishra, learned Additional

Government Advocate appearing for the State-Opposite Party

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No.1 and Mr. S.B. Jena, learned counsel appearing for the

Opposite Party No.2-Odisha Public Service Commission.

2. This writ petition has been filed by the Petitioner

challenging the Notice No.1220/P.S.C. dated 10.02.2022

(Annexure-4) issued by the Odisha Public Service Commission,

Cuttack (in short ‘Commission’) wherein the candidature of the

Petitioner for his selection and appointment as an Assistant

Public Prosecutor (Group-B) in terms of the advertisement No.08

of 2020-21 (Annexure-1) has been rejected on the ground that

he did not have the valid Odia Test Certificate as per Para-8(ii) of

the advertisement.

3. Mr. U.C. Mishra, learned counsel appearing for the

Petitioner, submitted that pursuant to the advertisement issued

under Annexure-1 by the Commission, the Petitioner made his

application as an unreserved candidate. It is submitted that in

consideration of the application of the Petitioner, he was allowed

to take the written examination and qualified the same

successfully. It is further submitted that vide Notice dated

25.1.2022, the Petitioner was directed to appear on 10.02.2022

for verification of his documents and after such verification, the

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Petitioner was issued the impugned notice under Annexure-4

indicating therein the ground of rejection of his application. It is

further submitted that the eligibility condition prescribed under

Para-8(ii) of the advertisement under Annexure-1 is as follows:-

“He/She must be able to speak, read & write Odia

and must have passed either the Middle School standard
language test in Odia conducted by the Board of
Secondary Education, Odisha or the Matriculation (Class-
X/10th standard) Examination with Odia as a subject.”

4. It is further submitted by the learned counsel for the

Petitioner that the aforesaid stipulation under Para-8(ii) of the

advertisement was prescribed taking into account the provision

contained under Rule-5(ii) of the Orissa State Prosecution

Service Rules, 1997 (in short “the Rules”). Rule-5 of the said

Rules prescribes as follows:-

“5. Eligibility criteria for direct recruits

5.1. In order to be eligible for direct recruitment to
Group ‘B’ and ‘A’ services under Rule 4.1 and 4.3 (ii) of
these Rules candidate must fulfill the following general
conditions-
(i) He must be a citizen of India
(ii) He must be able to speak, read and
write Oriya and must have passed
either the Middle School standard
language test in Oriya conducted by the
Director of Secondary Education, Orissa
or the Matriculation (Class-X/10th
standard) Examination with ‘Oriya’ as
a subject”

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 (iii) He must have good character and
satisfactory antecedents as revealed by
the Police Verification.
(iv) He must have sound health/good
physique, active habits and free from
organic defects or bodily/mental
infirmity.
(v) He must not have more than one spouse
living.
(vi) He must possess a good character as
certified by two responsible citizens of
India, one of whom must be a
Government Servant not below Group
‘B’ service.
(vii) He must possess a Bachelor’s degree in
law from a recognized university.
5.2. Additional eligibility criteria for direct
recruitment to Group ‘B’ service under Rule 4.1
above-
(i) He must not be above the age of 35
years on the 1st day of January in
which the notification of recruitment is
issued.
(ii) He should have at least seven years of
experience as practising advocate.
5.3. Additional Eligibility criteria for direct
recruitment of Group ‘A’ Service under rule 4.3 (ii)
above-
(i) He must not have completed the age of
45 years on the first day of January in
which the Notification for recruitment is
issued.
(ii) He should have at least 15 years of
experience as practising Advocate.
5.4. The upper age limit prescribed in sub-rules
5.2 and 5.3 above shall be relaxed in respect of
S.C./S.T./Socially and Educationally backward
classes/Women candidates/Sportsmen/Ex-

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 servicemen as per the provisions made by the
Government in this respect from time to time:
Provided that in case of candidate falling in
more than one of the categories mentioned in sub-
rule 4 above, he/she will be eligible to claim only
one of the age relaxation prescribed, whichever is
more beneficial to him/her.”

5. It is further submitted by the learned counsel for the

Petitioner that the Petitioner in terms of the requirement

provided under Para-8(ii) of the advertisement read with

Rule-5(ii) of the Rules, submitted the certificate, the Petitioner

having acquired the said qualification in the examination

conducted by the National Institute of Open Schooling vide

Annexure-12. It is further submitted that since the Petitioner

passed the Central Board of Secondary Examination (CBSE)

Standard 10 Examination without having Odia as a subject, he

appeared the Odia test conducted by National Institute of Open

Schooling and successfully passed the same on 15.12.2018. It is

further submitted that the said qualification acquired by the

Petitioner is equivalent to the qualification prescribed under

Rule-5(ii) of the Rules and Para-8(ii) of the advertisement.

6. Mr. Mishra, learned counsel appearing for the Petitioner

also brought to the notice of the Court the notification issued by

the Board of Secondary Education Odisha, Cuttack on 5.8.2014

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under Annexure-7 wherein the revised list of the

Boards’/Organizations in India conducting 10th Class

(Secondary) Examination, which are declared equivalent to the

High School Certificate (H.S.C.) Examination was notified. In the

said notification issued under Annexure-7, the name of National

Institute of Open Schooling finds place at Serial No.31. Mr.

Mishra also brought to the notice of this Court the

communication issued by the National Institute of Open

Schooling on 9.12.2010 under Annexure-8 wherein basing on

the decision of the High Court of Gujarat at Ahmedabad, it has

been indicated that the certificates issued by the National

Institute of Open Schooling are equivalent to the certificate

issued by the CBSE, CISCE and NIOS, as they are all being

constituted by the Education Department, Government of India.

It is, accordingly, submitted that since the Petitioner has

acquired the required Odia qualification, conducted by the

National Institute of Open Schooling vide Annexure-12, the said

qualification is equivalent to the qualification prescribed under

Rule-5(ii) of the Rules vis-à-vis Para-8(ii) of the advertisement.

Accordingly, it is submitted that the rejection of the Petitioner’s

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candidature on the ground indicated under Annexure-4 is illegal

and unjustified. Mr. Mishra, in support of his aforesaid

submissions, relied on a decision of Hon’ble Delhi High Court in

the case of Tanishq Gangwar & Ors. -v.- Union of India &

Ors. (W.P.(C) 6773/2018 & CM APPL. 25697-98/2018,

28282/2018,28287-88/2018 & 29674-75/2018 decided on

17.08.2018). In the said judgment, Hon’ble Delhi High Court at

Paragraphs-2, 22 to 24 and 28 to 29 held as follows:-

“2. The impugned Regulations debarred all candidates who

have passed 10+2 level with Biology/Biotechnology as an
additional subject whether simultaneously or subsequently at
10+2 level. The Regulations were challenged by some
students before this Court by W.P.(C) No. 1917 of 2018.
During the course of hearing, the MCI, without further
amending the impugned Regulations issued a clarification
that the impugned Regulations does not apply to students
who have studied biology/biotechnology as an additional
subject simultaneously with other subjects at 10+2 level,
however would debar students who had studied
biology/biotechnology as additional subject subsequent of
passing 10+2 without these subjects. The MCI, by way of
clarification in the Court modified an existing statutory
provision, without any formal amendment. The petitioners
complain that this has resulted in creation of an artificial and
arbitrary sub-classification amongst similarly placed
categories of persons who had studied biology as an
'additional subject' at 10+2 level. The court had disposed of
W.P.No.1917/2018 without considering whether the
impugned regulations of MCI, in respect of petitioners and
similarly placed persons who have passed
biology/biotechnology as additional subject subsequent of
passing10+2 without these subjects was legal and valid.

22. Anshul Agarwal has ruled that exclusion of open school

and NIOS candidates is both discriminatory and arbitrary.
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Apart from the reasons discussed in that judgment, which
squarely applies in the present cases, a fortiori given that all
students would have undergone regular schooling for 12
years, but only appear in the additional biology subject in the
later year, WP(C) No.6773/2018 Page 30 the reasoning given
by the court as to why the open school candidates should be
permitted participation, apply. Here too, like in the case of
open school candidates, the students undergo learning in
class in a later year; they undoubtedly have to attend
practicals. In any case, wherever there is doubt whether the
schooling in any additional subjected takes place during the
subsequent year or years, can be verified at an appropriate
stage, maybe at the stage of counselling or admission.

23. This court is further of the opinion that the reliance placed
on the single judge and Division Bench ruling in Raghukul
Tilak does not help the MCI. The regulations were then silent;
the MCI's action in refusing participation of similar
candidates, was questioned. In the "no rule" period, it was
the executive decision that was questioned. However, now
the MCI has framed regulations that disqualify such
candidates; this court has to examine the reasonableness of
such regulations and how they further the larger objective of
ensuring that those of a certain calibre are amongst
candidates permitted admission. These issues concededly
need elaborate consideration, rather than a positive assertion
of executive discretion based on expert regulatory judgment.
Such elaborate examination would necessarily involve,
whether and if so, there are justifiable reasons to exclude
such category of candidates from participating in NEET and
gaining admissions; also whether such reasons are germane
and reasonable.

24. A comparison of Regulation 4 (2) (a) with Regulation 4 (2)

(b) would reveal that as the two categories: i.e. those
appearing in the concerned State Board on the one hand
(Reg. 4 (2) (b)) and CBSE or ICSE public examinations on the
other (Reg. 4 (2) (b)) are treated at par. Yet, those WP(C)
No.6773/2018 Page 31 appearing in the state intermediate
boards do not have to undergo the regular, continuous and
simultaneous learning in school/class rooms, like in the case
of CBSE/ICSE candidates;

(1) Thus, a candidate appearing in an intermediate board

examination with a set of subjects which does not include
biology, can appear again in the subsequent examination,
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pass in that subject with the requisite qualifying marks; she
or he would then be eligible;

(2) The clarification issued in a tabular form, by the MCI

(which was discussed in Anshul Agarwal) is silent on the
class of candidates covered by Regulation 4 (2) (b). Thus, it is
open to the students who appear in a "Intermediate
examination in science of an Indian University/Board" to
qualify in the relevant subjects, except biology, and then
appear in that subject in the next year, to be eligible to
appear in NEET. This means that the MCI's position that all
candidates should have undergone 2 years' continuous
schooling in the +2 stage (whether CBSE/ICSE/ intermediate
boards etc) is inapplicable uniformly. Absolutely no rationale
is provided for this asymmetry or inconsistency by the MCI,
rendering proviso to Regulation 4 (2) (a) (to the extent it
excludes those appearing in CBSE with
Biology/biotechnology as additional subjects and qualifying
in those subjects in a subsequent year, ineligible) arbitrary;

(3) The only rationale discernible in the pleadings that were

considered in the Anshul Agarwal batch of cases, for
students appearing with biology as additional subjects, can
be gathered from the following WP(C) No.6773/2018 Page 32
extract of the affidavit of the Union Human Resource
Development ministry, quoted in the judgment, which is
extracted below:

"That it is submitted that, in regard to

candidates taking Biology/Bio-Technology as
additional subjects in class 11th and 12th will
not be eligible to appear in the NEET
Examinations, this Ministry has no comments to
offer as it is the domain of Respondent No. 1
Ministry of Health & Family Welfare, Govt. of
India and Respondent No. 2."

There was no material disclosed by MCI to show the Ministry

of Health & Family Welfare's position, supporting the class of
students and candidates, represented in this writ petition.

(4) The MCI's position that those appearing in additional

subjects are disqualified and ineligible from NEET
participation is on an assumption that those who offer the
relevant subjects (biology/biotechnology) as additional
subjects do not undergo classroom learning. There is no
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underlying basis in the form of empirical material, or in the
form of analysis of various state boards curricula, or syallabi,
or even the examination regulations, to support this
assumption.

(5) A comparison of category (3), (4) and (6) in the tabular

chart issued by the MCI on the one hand with category (7) on
the other would reveal that there is no consistency internally
in the MCI's interpretation of Regulation 4 (2) (a). On the one
hand, in the first two classes (Sl. Nos 3 and 4) the
clarification covers those who appear in compartment or
supplementary examinations to improve their performance, or
those who fail in either in class XI or Class XII, but WP(C)
No.6773/2018 Page 33 later qualify in the concerned
examination board, the students are deemed eligible; the
third class (Sl. No. 6) covers those who appear in the
examination after a "gap" year. On the other hand, in Sl. No.
7 (which covers the present petitioners) the "gap" is only in
respect of the additional subject. There is consequently, no
consistent pattern in the manner of exclusion of such
artificially categorized candidates. The glaring and stark
arbitrariness in the MCI's interpretation is facially evident,
because in Sl. No. 3, the candidate might have failed in
biology or biotechnology- a performance which he might
repeat. In such case, he would get the benefit of both Sl. No 3
and 4. Equally, the subject in which the candidate fails might
also be the same (biology) etc, in the Board examination. Yet,
the candidate is deemed eligible to appear in NEET. This
amounts to treating those within the same class of
candidates in a discriminatory manner; there is no nexus
with the objective of ensuring that only candidates with the
basic level of proficiency and attainment gain admission to
medical seats, covered by NEET.

(6) This court's reasoning with respect to exclusion of NIOS

candidates from NEET, for reasons discussed in Anshul
Agarwal logic squarely apply.

(7) Candidates who fall in Sl. No. 7 (i.e. those who had
cleared in biology as an additional subject in schools) are
permitted to apply for the medical entrances in All India
Institute of Medical Sciences and also for selection in
Jawaharlal Institute of Postgraduate Medical Education and
Research (JIPMER, for short), Puducherry. These are WP(C)
No.6773/2018 Page 34 premier medical schools. The
exclusion of the petitioners and others like them solely
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 because of a unidimensional understanding (based on
curricula of CBSE/ICSE and without analysis of any state
board syllabi) that those with additional subjects are in some
manner not "up to the standard" is illogical and arbitrary.

28. Lack of any empirical study, supporting the MCI's

conclusion that those who qualify from regular scholastic
study in the 10+2 exams with additional subjects of
biology/biotechnology either at one go, or after a year, do so
without laboratory experience, render Regulation 4 (2) (a) to
that extent arbitrary. Juxtaposed with clauses (b) (of
Regulation 4 (2) which talks of Intermediate state boards)
which does not be speak of any such disqualification, the
irrational and arbitrary nature of the regulation stands out in
sharp relief. As outlined in para 24, the MCI's regulations are
based on its conclusions rather on any data or objective
material. For these reasons, it is held that the category
covered in Sl. No. (7) of the clarification issued by MCI and
the regulation (Regulation 4 (2) (a)) to the extent it sets out the
impugned disqualification "Furthermore, study of WP(C)
No.6773/2018 Page 39 Biology/Biotechnology as an
Additional Subject at 10+2 level also shall not permissible..."
are hereby set aside as discriminatory and arbitrary.

29. As a result of the above discussion as well as in view of

the reasoning in Anshul Agarwal it is held that the petitioners
(and the applicants in CM 29675/2018, i.e. Govind Yadav,
Ms. Kiran, Mahesh Ranwa, Harkesh Poonia and Savita
Bhadu) all of who had appeared in NEET and qualified in the
entrance examination, and were also successful during
counselling, but not granted final admission in the allotted
seats, awaiting the decision in this proceeding, shall be
granted final admission. The writ petition and application
(CM 29675/2018) are allowed in these terms. No costs.”

7. Mr. Mishra, learned counsel appearing for the Petitioner

also relied on another decision of Hon’ble Gujarat High Court in

the case of Sidharth Jagdishbhai Panchal Thro’ father

Jagdish D. Panchal -v.- Admission Committee for

Professional Diploma Course (ACPDC) & 4 (Special Civil

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Application No.7406 of 2010 decided on 23.8.2010).

Hon’ble Gujarat High Court at Paragraph-15 of the said

judgment held as follows:-

“It has not been disputed that CBSE, CISCE, as

also NIOS, all Boards have been constituted by the
Education Department, Government of India. For all
purposes, they are equivalent. It is also not in dispute that
there are institutions in the State of Gujarat, including the
institution in which the petitioner has studied, which is
recognized by the NIOS and certificate is granted by NIOS.
Previously, on behalf of the NIOS, CBSE used to grant the
certificate and now after the decision of the Central
Government, since 2002, it has been granted by NIOS.”

8. Making all such submissions, Mr. Mishra, learned counsel

appearing for the Petitioner submitted that since in terms of the

provisions contained under Rule-5(ii) of the Rules read with

Para-8(ii) of the advertisement, the Petitioner has the required

qualification in Odia, his candidature should not have rejected

on the ground indicated in the impugned notice dated

10.02.2022 under Annexure-4. It is also submitted that this

Court vide its order dated 10.5.2022 passed an interim order

with a direction to keep one post vacant and the said interim

order is in force.

9. Mr. S.B. Jena, learned counsel appearing for the Opposite

Party No.2-Odisha Public Service Commission, on the other

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hand, submitted that since the Petitioner has passed CBSE

Class-10 from the Kendriya Vidyalaya without Odia as a

subject, the certificate produced by the Petitioner under

Annexure-12 is not in terms of the advertisement. Accordingly,

his candidature has been rightly rejected vide the impugned

notice. It is also submitted that the Commission after

completing the test has recommended the list of successful

candidates to the Additional Chief Secretary to Government,

Home Department, Bhubaneswar vide its letter dated

17.2.2022. Accordingly, it is submitted that since the

qualification acquired by the Petitioner vide Annexure-12 is not

in terms of the provision contained in Para-8(ii) of the

advertisement, no illegality has been committed by the

Commission in rejecting his candidature.

10. A rejoinder affidavit has been filed by the Petitioner and in

the said rejoinder affidavit, it is indicated that since the

Petitioner passed the CBSE Class-10 without Odia as a subject

in accordance with the Rules, he appeared the required

examination conducted by National Institute of Open Schooling

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and the said examination was conducted in Revenshaw Girls’

High School, Cuttack in the year 2018.

11. Mr. Mishra, learned counsel appearing for the Petitioner

further submitted that as provided under Rule-5(ii) of the Rules,

a candidate must be able to speak, read and write Oriya and

must have passed either the Middle School standard language

test in Oriya conducted by the Board of Secondary Education,

Orissa or the Matriculation (Class-X/10th standard)

Examination with ‘Oriya’ as a subject. It is further submitted

that since the Petitioner has acquired the said examination from

National Institute of Open Schooling, which has been declared

as equivalent by the Board of Secondary Education, Odisha,

Cuttack vide Annexure-7, the action of the Commission in

rejecting the Petitioner’s candidature needs interference by this

Court. It is also submitted that due to such rejection of

candidature of the Petitioner vide the impugned Notice dated

10.2.2022, the Petitioner was not allowed to take the viva voce

test even though the Petitioner in his written examination has

secured 114.206 marks and the last candidate selected in UR

Male Category taking into account the marks secured in written

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and viva voce is 116.486. It is submitted that if the Petitioner

will be allowed to take viva voce test, there is every possibility of

securing the mark so secured by the last such candidate in UR

Category.

12. Having heard learned counsel for the parties and after

going through the materials on record and taking into account

Rule-5(ii) of the Rules which prescribes that a candidate must

be able to speak, read and write Oriya and must have passed

either the Middle School standard language test in Oriya

conducted by the Board of Secondary Education, Orissa or the

Matriculation (Class-X/10th standard) Examination with ‘Oriya’

as a subject and the said rule being incorporated in Para-8(ii) of

the advertisement, since the Petitioner has passed the CBSE

Class-10 without having Odia as a subject, he appeared the

Odia test conducted by the National Institute of Open Schooling

and the certificate issued under Annexure-12 is to be treated as

equivalent as to the certificate issued by the Board of Secondary

Education, Odisha, Cuttack in conducting such test, this Court

finds that the ground on which the Petitioner’s candidature was

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rejected vide Notice dated 10.02.2022 under Annexure-4 is

illegal.

13. Therefore, while interfering with the same, this Court

directs the Opposite Party No.2 to allow the Petitioner to take

the viva voce test by the same Board which has earlier

conducted such viva voce test in respect of other successful

candidates. This Court further directs that on being allowed to

take viva voce test and after adding the mark so secured by the

Petitioner in his written examination with the mark in the viva

voce test, the Petitioner if found to have secured the mark

obtained by the last candidate in UR Male Category, necessary

order of appointment be issued in his favour. This Court also

directs the Opposite Party No.2 to complete the entire exercise

within a period of two months from the date of receipt of this

order.

14. With the aforesaid observation and direction, this writ

petition stands disposed of.

(Biraja Prasanna Satapathy)

Judge
Orissa High Court, Cuttack
The 1st November, 2022/D. Aech, PA.
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