IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26888 of 2013 Bhagabata Maharana …. Petitioner Mr. Basudev Pujari, Advocate -Versus- Paradip Port Trust, Jagatsinghpur & others …. Opposite Parties Mr. S.D. Das, Senior Advocate & Mr. Mohammed Faradish, Advocate for O.P. Nos.1 to 3 CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING: 10.04.2026 DATE OF JUDGMENT:19.06.2026 1. Instant writ petition is filed by the petitioner to declare selection of opposite party No.4 as illegal and non est in the eyes of law and furthermore, to direct the opposite parties to offer him the appointment to the post of Pharmacist after such declaration since he stood second in the selection process and on such other grounds stated therein. 2. In fact, the petitioner challenges the appointment of opposite party No.4 as the Pharmacist on the premise that his very appointment is illegal as he was ineligible for the said post considering the advertisement published. Briefly stated, the facts of the case are as follows. The petitioner, after completing Matriculation in 1997 and +2 Science in 1999 took admission in diploma course in Pharmacy and AFR completed it in 2003 and thereafter, registered himself as a Pharmacist in the same year and ever since then, he has worked at various places as a Pharmacist. In the year 2012, opposite party No.2 on behalf of opposite party No.1 published the advertisement to fill up the vacant posts in the Paradip Port Trust (PPT) including the post of Pharmacist. It is pleaded that all the posts belong to reserved category with the eligibility criteria fixed and the qualifications prescribed in the advertisement dated 16th March, 2012, a copy of which is at Annexure-3. It is further pleaded that the petitioner pursuant to the advertisement submitted his application for the post of Pharmacist and after its verification, he was issued a call letter dated 2nd November, 2013 i.e. Annexure-5 for interview. After the call letter was received and with a written test conducted, opposite party No.3 published the list of successful candidates qualified to appear the interview. Since the petitioner stood first in the written test, he was allowed to appear in the viva-voce. The result of the written examination is at Annexure-6. After the interview was over, opposite party No.3, without declaring the result with a merit list published, orally informed the candidates about the selection of opposite party No.4 to the post of Pharmacist having secured highest marks in total, but on enquiry, the petitioner learned that he was second in the list with 76 marks scored. It was further learned that opposite party No.4 though managed 83 marks and stood first in the merit list was not eligible to apply for the post being over-aged as per Annexure-3. Upon such information received, the petitioner submitted an objection to opposite party Nos.2 and 3 questioning the candidature of opposite party No.4 and his selection, but it was not entertained and was followed by the latter’s appointment to the post in question. 2.1. As pleaded on record, the selection of opposite party No.4 is bad in law since he was not eligible and as such, his application was to be rejected at the time of verification of the documents and therefore, inviting him for the interview and further giving him an appointment is illegal. It is also pleaded that the posts were reserved for OBC candidates only and the age limit was 28 years, extendable by three years for OBC, hence, a candidate must have been 31 years of age as on 31st December, 2011 to be eligible to apply, but in the case of opposite party No.4, he was above 33 years as on the said date and hence grossly over-aged and thus, was not eligible at all and therefore, his very selection and appointment is liable to be interfered with and quashed. 2.2. It is alleged that opposite party Nos.2 and 3 did not publish the merit list but orally declared the result, informing that opposite party No.4 stood first, whereas the petitioner was in second position in the selection held. It is further alleged that opposite party Nos.1 to 3 intentionally selected opposite party No.4, who was working under opposite party Nos.2 and 3 as Pharmacist on an ad hoc basis since last 3 to 4 years from then and only to regularize him in service, ignoring the terms of the advertisement and in order to show him favour committed the illegality with the selection, which is outrightly illegal and violative of Articles 14 and 16 of the Constitution of India. With the above facts pleaded, selection of opposite party No.4 has been questioned by the petitioner. 3. In reply to the above, with the counter affidavit filed, the opposite parties justified the selection of opposite party No.4 denying the allegation that such selection is illegal. It has been pleaded therein that in terms of the advertisement, the selection was held and the result was published vide Annexure-A/1 series and accordingly, opposite party No.3 had declared the result with a merit list prepared after due evaluation of marks and in that, opposite party No.4 found to have secured 80.33 marks and stood first. Furthermore, it is pleaded that the case of opposite party No.4 was considered on compassionate ground under rehabilitation scheme of the PPT but inadvertently, it was not mentioned in the advertisement, but the scheme has been in vogue since its introduction. A copy of the said scheme is at Annexure-B/1 to the counter. The stand of the opposite parties is that the application of opposite party No.4 was taken into consideration for appointment on compassionate ground as per the scheme, hence, there has been no any illegality committed as alleged by the petitioner. It is also pleaded that in the advertisement, according to the rules, the age limit was extendable up to 31 years, but it was further relaxed for opposite party No.4 exercising the discretionary power of the Services Selection Committee (SSC) as the appointment was under the scheme of the PPT and such relaxation is by virtue of the circular/office order i.e. Annexure-C/1. According to the opposite parties, after completion of selection process, the result was declared by opposite party Nos.2 and 3, in which opposite party No.4 stood first and the petitioner in second position and was empanelled for appointment in future in case any vacancy arises in the grade of Pharmacist. As per the minutes of the proceeding at Annexure-D/1, it is lastly pleaded that opposite party No.4 was though working in the PPT Hospital, Paradip on contractual basis, but opposite party Nos.2 and 3 have not shown any favourtism to him, inasmuch as, the selection was held strictly as per rules with a written test and interview conducted by the SSC and the selection was on merit only, hence, the allegations adopting unfair means is totally misplaced and hence, the writ petition deserves to be dismissed in limine. 4. Heard Mr. Pujari, learned counsel for the petitioner and Mr. Das, learned Senior Advocate with Mr. Mohammed Faradish, learned counsel for opposite party Nos.1 to 3. 5. A selection was held to fill-up the post of Pharmacist in the PPT. As per the list of candidates who succeeded in the written test as at Annexure-6, it is made to reveal that the petitioner secured the highest marks, whereas, opposite party No.4 scored at par with two others. It is claimed by the petitioner that a merit list was declared and selection of opposite party No.4 was informed orally, however, from Annexure-A/1, it is revealed that after the final selection and as per the marks secured by the candidates, opposite party No.4, since received highest marks i.e. 80.33, was declared first, whereas, the petitioner was second with 74.32 marks and one Mr. Jubak Pradhan as third in the merit list. It is admitted by the opposite parties that the list of the candidates to appear before the SSC for interview was released on the same day and that the petitioner had received highest marks in the written test, hence, was short-listed along with opposite party No.4. In the said list, the petitioner is found to have scored 50 marks, whereas, opposite party No.4 received 48 marks but in the final merit list prepared on the basis of the marks scored in written test, interview and also marks attributed to the qualification and experience, opposite party No.4 was declared first therein. The selection has been made on the basis of marks secured by the candidates. As earlier stated, the petitioner scored 74.32 marks and other candidate at third position managed 70.49 marks with opposite party No.4 having received 80.33 marks. On a bare perusal of the total marks secured by the candidates at Annexure-A/1 to the counter, the Court finds that the petitioner secured 41.66 marks in the written test which is the highest among all the candidates, whereas, opposite party No.4 scored 40 marks. It is revealed that all the candidates were in the range of 38-40 marks secured in the written test. In the interview, however, opposite party No.4 scored the highest and also for the experience, he was given 12 marks and as a result, stood first in the final selection declared selected as per Annexure-A/1. It is to be accepted that the marks were given to all the candidates on the basis of their merit. From Annexure-A/1, it is made to understand that opposite party No.4 having secured 80.33 marks in the selection more than anyone else and was declared selected for the post of Pharmacist. 6. In so far as relaxation of age is concerned, opposite party No.4 was above 31 years as on the 31st December, 2011. But such relaxation of age is justified by the opposite parties in view of Annexure-C/1. In fact, it is claimed by the opposite parties that selection of opposite party No.4 is in terms of the rehabilitation scheme i.e. Annexure-B/1. By Office Memorandum dated 14th March, 2001, the PPT released the revised instructions on the scheme for compassionate appointments indicating therein the object of the scheme and to whom it is applicable with eligibility criteria, exemption and relaxation. It is pleaded that opposite party No.4 was though engaged in the PPT on contractual terms, but has been appointed upon his selection on merit with the age relaxed as per the scheme. According to the scheme at Clause 6B Note: II, it is stipulated that the Authority competent to take a final decision on compassionate appointment shall have the discretion to grant relaxation to the upper age limit. Referring to the scheme and the relevant clause therein, selection of opposite party No.4 with relaxation of age is justified. If any such appointment was to be given under the scheme with selection of opposite party No.4, in view of the provision therein, relaxation of age is permissible subject to exercise of discretion by the competent authority in that regard. In such view of the matter, it would not be proper to allege that opposite party No.4 was over-aged by 31st December, 2011, rather, he was eligible for appointment with the relaxation of age permissible under the scheme. 7. A reference has been made to Annexure-C/1 to contend that by a decision dated 29th November, 2013 in terms of the Board’s Resolution dated 30th May, 2013 of the PPT, it was approved that the candidates engaged on contractual basis and continuing as such and the candidates enlisted under compassionate appointments shall be given opportunity to compete with outside candidates while filling up any posts on a regular basis subject to fulfillment of recruitment rules relaxing their age. It was also approved that the upper age limit in case of the candidates enlisted under compassionate appointment may be relaxed, limiting to a maximum 45 years similar to the candidates engaged on a contractual basis. On a reading of the office order dated 29th November, 2013 of the PPT (Administrative Department) at Annexure-C/1, it is understood that the candidate enlisted under the scheme shall have the opportunity to compete with other candidates while filling up any such posts on regular basis subject to other conditions of recruitment rules being satisfied besides relaxation of age. It is claimed by the opposite parties that opposite party No.4 though was engaged on a contractual basis, but was enlisted under the compassionate appointment and hence, he was allowed to appear in the selection process. The scheme at Annexure-B/1 and also the office order i.e. Annexure-C/1 reveal that any such compassionate appointment shall have to be in terms thereof and a candidate enlisted under the scheme is allowed to participate in an open recruitment held for any regular posts in the PPT. So, the Court finds that the rules of recruitment clearly envisage inclusion of the candidates engaged on contractual terms in the PPT and also enlisted with them under the compassionate appointment scheme. Since opposite party No.4 is a candidate enlisted under the scheme, hence, according to the Court, he had been allowed to compete with all other candidates in the selection to the post of Pharmacist in the PPT and therefore, no wrong or illegality has been committed by the opposite parties. 8. From Annexure-D/1 with the details of the proceedings, it is made to appear that the SSC interviewed all the candidates one by one and each of its members awarded marks separately and the average marks secured were added to the total including the marks of the written test. In fact, from Annexure-D/1, the Court finds that the written test was held on 1st December, 2013 and 32 candidates were issued the call letters, but only 21 appeared and after the answer papers were evaluated by the officials of the PPT in presence of SSC, they were kept in a sealed cover and thereafter, the interview was held. In the final selection with the total marks obtained by the candidates and as per the proceeding recorded vide Annexure-D/1, opposite party No.4 was recommended for being appointed to the post of Pharmacist with the names of the petitioner and the other candidate, namely, Mr. Jubak Pradhan kept in the panel and it was followed by the appointment letter dated 4th December, 2013 i.e. Annexure- E/1 issued to him. Considering the fact that a selection has been held and therein, opposite party No.4 was allowed to compete with others and it has been on the strength of a scheme floated by the PPT and in terms of the provisions contained therein and also allowing relaxation of age permissible up to 45 years, this Court reaches at a conclusion that no illegality has resulted and the selection process was held in accordance with the recruitment rules. 9. The contention of Mr. Pujari, learned counsel for the petitioner is that there has been no any mention in the advertisement about any such candidate belonging to and enlisted under the compassionate scheme to compete with others. The contention is that it was to be disclosed in the advertisement itself. Mr. Pujari, learned counsel would further submit that nowhere in the advertisement at Annexure-3, it was indicated about such other candidate, who are eligible to apply for the post of Pharmacist and therefore, the selection of opposite party No.4 is outrightly illegal. It is also contended that opposite party No.4 was over-aged and in absence of inclusion of allowing any such candidate enlisted under the compassionate appointment scheme in Annexure-3, such selection cannot be justified and hence, it has to be quashed directing the appointment of the petitioner instead as he stood second in the final selection. 10. On the other hand, Mr. Mohammed Faradish, learned counsel for the PPT submits that even though there is no mention about allowing a candidate empanelled under the scheme to compete with outsiders, it was by inadvertence and that by itself is not to invalidate the selection process. The further submission is that the selection has been held in accordance with the advertisement and as per the rules adhering to the provisions of the scheme and office order dated 29th November, 2013 as at Annexures-B/1 and C/1 respectively. The contention of Mr. Mohammed Faradish, learned counsel is that when the rules are in place with a provision to allow a candidate enlisted under the scheme to compete with outsiders, mere non-mention of the same in the advertisement is not to affect the result. In response to the above, Mr. Pujari, learned counsel submits that the petitioner and other candidates did not have the notice or the knowledge about the vacancy to be filled up with a candidate enlisted under the scheme, hence, the selection is vulnerable and liable to be struck down by this Court. 11. The question is whether any such non-disclosure in the advertisement about the participation of such candidate enlisted under the scheme while filling up the vacancy for the post of Pharmacist has vitiated the entire exercise vis-a-vis the selection process? Each and every eligible candidate has a fundamental right to be considered for public employment. Any such departure while holding a selection and making appointments against vacancies not notified to the public could deprive qualified individuals of their right to equal opportunity. Without doubt, the authorities are strictly bound by the terms of advertisement while undertaking an exercise for selection. If a candidate is selected for a post which was never advertised to the public, it would be tantamount to a back-door entry. As it is understood, the compassionate appointments are an exception to the normal rule of direct recruitment but they are not exempted from the statutory requirements. In many Government Departments, a fixed quota is reserved in respect of vacancies explicitly for appointment under the compassionate scheme and if the selected candidate is adjusted against any such quota, lack of mention in the general advertisement is legally defensible and any such selection is to be upheld despite an oversight. According to the Court, a compassionate appointment is recognized as a constitutional exception to the general rule of recruitment and is an exercise undertaken as a means of a welfare measure for the family facing financial destitution due to an employee dying in harness and if the prevailing statutory rule or scheme for compassionate appointment specifically permits the adjustment of dependents of such an employee, regardless of whether the vacancy was published, the selection shall have to be protected. In other words, the fact that the vacancy was not notified in the advertisement and it was an inadvertent mistake or administrative error, in such a situation, a selection with an appointment on merit is not to be overruled provided one is found to be fully qualified and there is no any fraud, nepotism or back-door entry. 12. The Court is of the view that one vacancy to the post of Pharmacist was notified in the advertisement and it was open for all to apply including a candidate is in contractual service or who has been enlisted under compassionate appointment scheme. If the rules permit a candidate’s empanelment under the scheme and opportunity to compete with outsiders subject to fulfilment of other criteria with relaxation of age notwithstanding any such mistake by inadvertence or an error on the part of the Authority concerned about disclosing it in Annexure-3, in the considered view of the Court, it is not to be interfered with. In the case at hand, opposite party No.4 competed with other candidates and it was an open competition and not that he was simply accommodated against the vacant post of Pharmacist. In fact, Annexure-C/1 permits a candidate like opposite party No.4 and even someone in contractual service to appear and compete with outsiders in a recruitment and for that there can be relaxation of age up to 45 years. Nevertheless, the selection of any such candidates shall have to be on merit. Any such candidate must have to fulfil the other criteria fixed for the recruitment. A selection is held on merit and one among the candidates, whosoever is either an outsider or a candidate enlisted under the compassionate appointment scheme or under contractual engagement found eligible, would be selected. Such selection is considered to be on merit with an equal opportunity to such candidates with outsiders in an open competition. If the recruitment rules have a provision for open competition, according to the Court, the selection cannot be questioned irrespective of any such non-disclosure in the advertisement. Of course, it was for the authority concerned to make a mention about the eligibility of such candidates, but for the lapse on the administrative side, the selection of opposite party No.4 cannot be declared as invalid. Page 14 of 16 13. Only for the reason that opposite party No.4 was engaged in the PPT on contractual terms, favourtism is not to be alleged. It is certainly not a case of back-door entry because an open recruitment was held with an advertisement published. No fraud is also alleged by the petitioner. The claim is that undue favour was shown to opposite party No.4 and he was selected without any disclosure made in the advertisement about any such candidates having been permitted to compete with relaxation in age under the scheme. As it is already concluded that inadvertent administrative error is no a ground to invalidate the selection and its final result unless there is any evidence of fraud, nepotism or such other mischief committed during and in course of recruitment. Nothing is demonstrated on record while alleging favoritism shown to opposite party No.4, who was found meritorious and hence, was selected and appointed to the post of Pharmacist. If no instances are brought to the notice of the Court alleging misconduct on the part of the SSC, it would not be justified to allege that there has been favoritism in the selection of opposite party No.4. There is no allegation of any malfeasance attributed to the SSC which conducted interviews and awarded marks to the candidates. Under the above circumstances, considering the rival claims of the parties and submissions of learned counsels appearing for them, it is concluded by this Court that the selection of opposite party No.4 calls for no interference and the non- disclosure in allowing a candidate like him under the scheme in the advertisement i.e. Annexure-3 being an inadvertent administrative error is not to nullify such selection. 14. In course of hearing, Mr. Pujari, learned counsel for the petitioner cited the following decisions, such as, Tej Prakash Pathak and others Vrs. Rajasthan High Court and others in Civil Appeal No.2634 of 2013 with connected cases decided on 7th November, 2024 and Parimal Kumar and others Vrs. State of Jharkhand and others disposed of on 30th January, 2025 in SLP(C) No.4194 of 2024 besides K. Manjusree Vrs. State of A.P. and another in Appeal (Civil) No.1313 of 2008 dated 15th February, 2008 to contend that the rules of the recruitment could not have been violated after the advertisement while permitting opposite party No.4 to participate in the selection, all the more when it was not notified therein. With due respect, this Court holds that the decisions (supra) are not applicable to the case at hand. In Tej Prakash Pathak (supra), a cut-off mark was introduced after commencement of the selection process with the issuance of the advertisement and in that context, it was held impermissible. A similar view has been expressed by the Apex Court in Parimal Kumar (supra), wherein, referring to the decision in the case of Tej Prakash Pathak, it was concluded that the criteria laid down in the advertisement cannot be changed mid-way during the recruitment process unless the extant rules or the advertisement permits such change. The decision in K. Manjusree (supra) is no different with the above law being reiterated. As to the present case, the criteria stipulated in Annexure-3 have not been tampered with, rather, by inadvertence or on account of administrative error or mistake, the participation of a candidate under rehabilitation scheme in the PPT permissible in view the office order/circular in force failed to be mentioned therein. By no means, such an error to be equated with tinkering with the selection criteria mid-way. The above decisions relied on from the side of the petitioner and discussed in brief are, therefore, clearly distinguishable on facts and hence, the argument advanced by Mr. Pujari, learned counsel referring to the same with any such plea is liable to rejection. 15. Accordingly, it is ordered. 16. In the result, the writ petition stands dismissed for the reasons stated herein above. (R.K. Pattanaik) Judge Tudu