The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12516 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Lalit Kumar Nayak …. Petitioner(s) -versus- State of Odisha and Others …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Amiya Kumar Chhatoi, Adv. Mr. Dhananjaya Mund, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-03.07.2024 DATE OF JUDGMENT: -24.07.2024 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the Petitioner seeks a Writ of Mandamus from this Court to quash the promotion of Opposite Parties Nos.3 and 4 and declare the promotion of junior general candidates over senior reserved candidates as unconstitutional and illegal. I. FACTUAL MATRIX OF THE CASE:
Legal Reasoning
2. The brief facts of the case are as follows: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 Page 1 of 10 (i) The petitioner, belonging to the Scheduled Tribe (ST) category, has been working as an Amin since 2010. In contrast, opposite Parties No. 3 and 4, who belong to the general category, were appointed as Amins in 2012. (ii) The opposite party no. 2 vide his office letter dated 06.09.2018 circulated draft gradation list of Amins. In the said list, the petitioner was placed at serial no. 7, while opposite parties No. 3 and 4 were placed at serial Nos. 20 and 21, respectively. (iii) The Odisha District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983 (ODRS Rules, 1983) govern the service conditions and promotions for the petitioner and opposite parties Nos. 3 and 4. Rule 11 prescribes that promotions to Revenue Inspector are based on merit, suitability, and seniority. Eligible candidates are Amins and ARIs with at least five years of service by January 1st of the promotion year and who have passed required
Legal Reasoning
exams. (iv) The District Office sought clarification from the government on whether ST and SC category employees could be considered for promotion in the UR category vide a letter dated 16.08.2018. (v) Following that, the Revenue and Disaster Management Department, Odisha, clarified on 11.01.2019 that the state follows a post-based reservation policy. As per this policy, specific slots are earmarked for different categories, and vacancies for certain categories may remain unfilled if suitable candidates are unavailable. The government, further clarified that since there was an excess number of reserved category Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 candidates, their promotion against UR category posts could not be considered. (vi) Concurrently, two general category of Amins, one Rushinath Mahanta and one Sushanta Kumar Dwibedi, who were lower in seniority to the petitioner, were promoted to Revenue Inspectors on 19.01.2019. This led to petitioner and other senior reserved candidates filing O.A. 363/2019 with OAT, Bhubaneswar, which is currently sub-judice. (vii) Another issue arose when seven Job Contract employees, initially adjusted in regular Group-D posts in 2009 and later absorbed as Amins in 2017/18, were placed above the petitioner in the gradation list. This led to the petitioner and another Amin, Rabindra Naik filing W.P. (c) No. 18244/2019, which is also sub-judice. (viii) Subsequently, opposite parties Nos. 3 and 4 were also promoted to the post of Revenue Inspector on 11.12.2019 against unreserved (UR) vacancies. (ix) Aggrieved by the promotions of opposite parties Nos.3 and 4, petitioner approached this Court, requesting to quash the promotion order dated 11.12.2019 for opposite parties No.3 and 4, directing the State opposite party no. 2 to consider his promotion to the post of Revenue Inspector with all consequential benefits. He has also requested the Court to direct the concerned Authorities to convene a review Departmental Promotion Committee (DPC) within a stipulated period to address the petitioner’s promotion case. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 Page 3 of 10 II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The petitioner submitted that the promotion of opposite parties nos. 3 and 4 to the posts of RI against UR vacancies, despite the petitioner being senior in the gradation list, violates Articles 14 and 16 of the Constitution of India. (ii) He further submitted that the petitioner has completed 5 years of service in the post of Amin and has passed the departmental examination as required by the ODRS rules, making him eligible for promotion to the post of Revenue Inspector. (iii) He further submitted that a reserved candidate can compete for unreserved posts based on seniority and suitability, as per the settled position of law. Accordingly, the petitioner should not be deprived of promotion to an unreserved post solely based on his reserved category status. (iv) The petitioner cited the instruction dated 28.05.2020 of the Home Department, Govt. of Odisha/ stating that it supports the petitioner’s claim that seniority, irrespective of category, should be considered for unreserved posts. (v) The petitioner contended that there have been several clarifications from the ST and SC Development Department (dated 31.08.2007, 15.11.2008, 29.08.2019, 21.06.2022 and 30.06.2022) indicating that if a reserved candidate is senior and suitable, they should be considered for promotion against general quota vacancies. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 Page 4 of 10 (vi) He further contended that the OAT, Bhubaneswar, in O.A. 1311 of 2013, held that reserved candidates should not be deprived of promotion against unreserved posts if found suitable. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) It is submitted that the petitioner’s promotion was not considered due to the post-based reservation policy, which earmarks specific slots for different categories and does not allow for the consideration of excess reserved category candidates for UR posts. (ii) It is further submitted that the government’s clarification on 11.01.2019 indicated that the excess number of reserved category candidates precluded their promotion against UR category posts, irrespective of their seniority in the gradation list. (iii) It is contended that the clarifications issued by the ST and SC Development Department in 21.06.2022 and 30.06.2022 which indicate that SC/ST candidates within the zone of consideration should be treated as general category candidates for promotion to unreserved posts. However, these clarifications were not issued to the opposite party no. 2 directly. (iv) It is further contended that the promotions of opposite parties nos. 3 and 4 were in compliance with the post-based reservation policy as clarified by the government. The DOC did not violate any rules or misinterpret the law in not considering the petitioner’s promotion. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 Page 5 of 10 IV. COURT’S REASONING AND ANALYSIS: 5. Heard the Learned Counsels for both parties and meticulously examined the documents submitted before this Court. As per Rule 11 of the Orissa District Revenue Services (Method of Recruitment and Conditions of Service) Rules, 1983, promotions to Revenue Inspectors are based on merit, suitability, and seniority among Amins and Assistant Revenue Inspectors. They need to have at least five years of service and have passed required departmental exams/tests. 6. Furthermore, the Orissa Civil Services (Criteria For Promotion) Rules, 1992 state that promotions are based on merit, suitability, and seniority, with the select list arranged by seniority. The 2022 amendment clarifies that SC/ST candidates promoted or recruited on their merit and placed above unreserved candidates will fill unreserved vacancies and not be counted towards the reserved quota. 7. Now, let us peruse the relevant judicial precedents that elucidate this issue. In the case of Indra Sawhney v. Union of India1 the Apex Court, while referencing the intent of Article 16(4) of the Constitution opined that “In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” 1 AIR 1993 SC 477. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:10 Page 6 of 10 8. In the case of R.K. Sabharwal v. State of Punjab2, a Constitution Bench of the Supreme Court addressed the issue of appointments, promotions, and the use of roster points in relation to reservations. It held in para 5 as under: “When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State.” 9. Similarly, in the case of Union of India v. Virpal Singh Chauhan3, the Apex Court has held that when calculating the number of posts reserved for Scheduled Castes and Scheduled Tribes, candidates from these categories who are selected or promoted based on merit (rather than reservation rules) should not be counted as reserved category candidates. 10. This jurisprudential position has been emphatically reinforced by the Allahabad High Court in the case of UP Power Corporation Limited v.