The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.406 of 2024 Along with W.P.(C) Nos.512 of 2024, 520 of 2024, 1378 of 2024, 1552 of 2024, 1946 of 2024, 2002 of 2024 and 17607 of 2024 Bijaya Kumar Sandha & Ors. (In W.P.(C) No.406 of 2024) …. Petitioner (s) Ganeswar Sahoo & Ors. (In W.P.(C) No.512 of 2024) Surendra Nath Goudo & Ors. (In W.P.(C) No.520 of 2024) Anil Kumar Pradhan (In W.P.(C) No.1378 of 2024) Pradeep Kumar Lenka (In W.P.(C) No.1552 of 2024) Bikash Kumar Baral (In W.P.(C) No.1946 of 2024) Dibyaranjan Mallick & Ors. (In W.P.(C) No.2002 of 2024) Jubaraj Mohanty (In W.P.(C) No.17607 of 2024) Represented By Mr. Budhadev Routray, Sr. Adv. Along with Mr. J. Biswal, Adv. Mr. Rajiv Rath, Adv. Mr. Biplab P.B. Bahali, Adv. Mr. Nihal Rath, Adv. Page 1 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 Mr. Anurag Pati, Adv. Mr. Pradeep Kumar Mohapatra, Adv. -versus- State of Odisha & Ors. ….
Legal Reasoning
Opposite Party(s) Represented By Mr. Pitambar Acharya, Sr. Advocate Advocate General Along with Mr. Saswat Das, AGA Mr. Subir Palit, Sr. Adv. Along with Mr. A. Kejriwal, Adv. (for Interveners) Ms. Pami Rath, Sr. Adv. Along with M/s. Sucheta Gumansingh, Adv. (for Interveners) CORAM: DR. JUSTICE S.K. PANIGRAHI
Decision
ORDER 12.11.2024 Order No. 12. 1. These matters are taken up through hybrid arrangement. 2. The above cases are interlinked in terms of the subject matter and prayer. However, the W.P.(C) No.9208 of 2024 is not interlinked to these cases as the subject matter is different, hence, the same is detagged from the aforesaid W.P.(C) No.406 of 2024 and batch of cases. Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 3. Since common question of facts and law are involved in all the above- mentioned Writ Petitions, the same are heard together and are being disposed of by this common order. 4. In these batch of Writ Petitions, the petitioners who claimed to have been succeeded in the recruitment process carried out by the Opp. Parties pursuant to the Advertisement No.8425 dated 29.08.2023 to fill up 941 numbers of vacant post of Fireman and Fireman Drivers. Category wise vacancy position along with reservation thereof may be extracted herein below: Vacancy Position UR 1 622 74 ST 2 113 39 SC 3 91 02 Total 4 826 115 Post Fireman Fireman Driver 5. The petitioners challenge the action of the Opp. Parties in not filling up the vacancies which was earmarked to be 10 % quota reserved for Home Guards Category in accordance with the Rules1. The main thrust of argument of the petitioners are that the Opp. Parties instead of selecting / recommending the candidates for the post of Fireman and Fireman Driver as against the said 10% earmarked quota (i.e. 83), they have selected only 29 number of candidates. The candidates who have 1 Proviso appended to sub-clause(a) of Rule-4 of the Odisha Fire Service (Method of Recruitment and condition of Service of the Group-C Officers) Rules, 2021 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 merited selection at every stage of the selection process were deprived of getting appointment as against such earmarked quota. It is further contended in the batch of above Writ Petitions that, the earmarked quota meant for the Home Guards have been encroached upon by the candidates who are admittedly less meritorious than the petitioners. The petitioners have further prayed that they may be considered for selection and appointment under the said 10% quota out of the total number of advertised vacancy particularly under UR category. 6. It is borne out from the record that this Court passed some interim order vide order dated 31.01.2024 and 02.02.2024 whereby the recruitment process has been stalled and the appointment orders issued in favour of the selected candidates could not be given effect. 7. From the record, it appears that the Opp. Party Nos. 1 to 5 have filed a Counter Affidavit in W.P.(C) No. 406 of 2024 which has been adopted in other set of Writ Petitions. In Para- 5 of the said Counter Affidavit, a specific stand has been taken by the Opp. Parties that these vacancies were notified for completing the process of selection by adhering to the principle of reservations as applicable in the Govt. jobs. However, there was complete absence of reserved vacancies for the SEBC category which was made explicit in the Advertisement itself. They were allowed to compete against unreserved vacancies and they fail to secure the minimum qualifying marks fixed for the purpose of selection in the said unreserved category. Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 Further, in the Counter Affidavit, it was the specific stand of the Opp. Parties that the process of selection for recruitment for the posts of Fireman and Fireman Driver conducted pursuant to the Advertisement dated 29.08.2023 by adhering to the Odisha Fire Service (Method of Recruitment and condition of Service of the Group-C Officers) Rules, 2021.Insofar as the filling up 10% vacancies reserved for Home Guards is concerned, it has been stated that the same has been done in compliance with the principles laid down by the Apex Court in Sourav Yadav and others vs. State of Uttar Pradesh & Ors.2 and the instruction issued vide Letter No. 1955/Gen., dtd.19.01.2021 by the Opposite Parties are in tune with the ratio decided in the said case regarding vertical and horizontal reservation in filling of various civil service and posts. 8. It is further stated in para-7 of the Counter Affidavit that, as there was no vacancies earmarked for the SEBC category in the said advertisement, the application of the petitioners were taken into consideration under UR category and they failed to qualify on merit. The Recruitment Board has taken a view that Home Guards can get the benefit of reservation within their category or else be treated as open candidates (non-Home Guard). Since there were no vacancies in the SEBC category, the candidates were not extended the benefits of SEBC category. Once they were treated as open or non-Home Guard candidates, they were in competition with other open candidates and lost out on merit. The petitioners are misinterpreting the reservation rule 2 SLP (Civil) No. 23223 of 2018 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 claiming that 10% of reservation for Home Guards is irrespective of the caste category. 9. Though it has been the specific stand in the Counter Affidavit filed by the state that in order to justify their action in filling up of the post of Fireman and Fireman Driver particularly with respect to 10% quota earmarked for the Home Guard category, later during the course of hearing of the present Writ Petition, filed an Additional Affidavit vide dated 19.09.2024 sworn in by the Chief Fire Officer (SAG), Fire Prevention Wing, Directorate of Fire & Emergency Services, Cuttack, Odisha wherein specifically in Para-5 & 7, the following stand has been taken: - “5. That/ while drawing the select list, Home Guards from the SEBC category had not been considered against unreserved vacancy as there were no posts notified under the SEBC category. Even if there were no vacancies in the SEBC category as per advertisement, all candidates should have been considered first under unreserved category unless they have been given exemptions other than age and fees. The Home Guards of the SEBC category were entitled to be considered in the unreserved category as they had been given no exemption other than age. So, as advised by Counsel, the list has been redrawn. All candidates in horizontal categories of Home Guards, Ex-Servicemen and Sports, who have not availed exemption other than age, were first considered against unreserved category. Those who could not qualify in the unreserved category as per marks secured by them were then considered in the two caste categories in which vacancies had been advertised, i.e. SC & ST. Therefore, matter relating to reservation of Home Guards stands appropriately addressed per select list redrawn. Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 Xx xx xx 7. The select lists are submitted in sealed cover for information of the Hon’ble Court. from the SEBC community i. Select List-1-List published on 04.01.2024. ii. Select List-2-It is the redrawn select list including Home Guards, Ex-Servicemen and Sports (horizontal reservation), in the unreserved category and making consequent changes to the select list. However, in this select list over-age candidates have been excluded. Therefore, their Writ Petitions have to be decided before this list can be given effect.” 10. So far as the claim of the over-aged candidates are concerned, in Para-6 of the Additional Affidavit, the following stand has been taken by the state which is extracted hereunder: “6. It is humbly prayed/ however/ to dismiss the Writ Petitions filed by the over-age candidates in light of judgment of a Division Bench of this Court relating to appointment of Sub-Inspector of Police in W.P.(C) No. 5516 of 2023 (Maguni Sahoo & others vs. State of Odisha and others). The ratio in the Maguni Sahoo case should be followed in rejecting the case of over-age candidates.” 11. Drawing reference to the Additional Affidavit, it was argued by the Learned Advocate General, Odisha that the discrepancies / irregularities pointed out by the petitioners in the present batch of Writ Petitions particularly with respect to filling up of the post under 10% quota earmarked for Home Guard category has been redressed and a fresh select list has been redrawn. He produced the fresh/redrawn said select list before this Court in a Sealed Cover. The Ld. Advocate General, Page 7 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 further drawn the attention of this Court to Rule-4, 5 & 6 of the Odisha Fire Service (Method of Recruitment and condition of Service of the Group-C Officers) Rules, 2021 and submitted that the redrawn Select List has been prepared by strictly adhering to the statutory rules. He further contended that most of the petitioners in the above noted Writ Petitions had been placed in the redrawn list barring a few who were either over-aged or physically unfit. He also submitted that the Opposite Party has filed up the 10% quota earmarked for Home Guard category in letter and spirit hence the grievance of most of the petitioners stands redressed. 12. At this juncture, Mr. Rajib Rath, learned counsel appearing for some of the Petitioners strenuously submits that some cases of over-aged candidates are pending before a co-ordinate Bench of this Court in W.P.(C) No.29964 of 2023 and one matter before this Court vide W.P.(C) No.9208 of 2024. He further contends that some of the candidates might have qualified in the subsequent redrawn list which has been submitted before this Court in a sealed cover and opened in Court. 13. He also contends that if the Writ Petitioners, in the said matter challenging the overage have qualified in the redrawn list, the authority should consider their cases by keeping some posts vacant. 14. Mr. Subir Palit, learned Senior Advocate appearing on behalf of some of the successful candidates/interveners submits that many of the interveners/applicants have successfully qualified by going through rigor of selection test, but they might be out of the redrawn list. Hence, Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 their grievances should also be factored in, by considering their cases in respect of the vacancies, if any, arise in future. 15. Having heard the Learned Counsel for the parties at length and after going through the materials available on record, as well as the redrawn select list, which has been produced before this Court in sealed cover today, this Court is of the view that the grievances of the petitioners particularly with respect to filling up of the post as against the 10% earmarked quota for Home Guard category has been redressed. No fruitful purpose will be served by keeping the matter pending and allowing the vacancies to remain unfilled for years together. Fire Service being an essential service entrusted with the task of assessing the full range of foreseeable fire, save people from fire and related risks, make provision for prevention and protection activities and respond to fire incidents appropriately. There is always an urgent need to facilitate joining of Fire and Emergency Service personnel for training and subsequent deployment. Any delay in such recruitment process will be detrimental to the public interest and the general public will be at the receiving end. In view of the redrawn Select List, these Writ Petitions need to be disposed of. 16. Insofar as the claim of the over-aged candidates are concerned, it is stated at bar that separate set of Writ Petitions are pending before a coordinate Bench of this Court for adjudication. Therefore, this Court without expressing any opinion on the merits with respect to the claim of the over-aged candidates for their selection and appointment to the Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51 post of Fireman and Fireman Driver, disposes of the present batch of Writ Petitions with a direction to the Opp. Parties to conclude the selection process pursuant to the revised / recast / redrawn Select List which was produced before this Court in sealed cover today and fill up the posts accordingly. 17. With the aforesaid observations, the above-mentioned batch of Writ Petitions are disposed of. 18. Interim order, if any, passed earlier, in any of the Writ Petitions, by this Court stands vacated. Judge ( Dr. S.K. Panigrahi ) B. Jhankar Page 10 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2024 17:33:51