Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.17057 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Ramakanta Pradhan, Aged about 28 years Son of Padma Charan Pradhan At: Badasurabila P.O.: Bakugram Via: Balanga, District: Puri Pin: 752105. … -VERSUS- 1. State of Odisha represented through Commissioner-cum-Secretary to Government, Commerce & Transport Department New Secretariat, Bhubaneswar District: Khordha. 2. Transport Commissioner, Odisha Rajaswa Bhawan, 6th Floor, Cuttack District: Cuttack. 3. Odisha Staff Selection Commission Barrack No.1, Unit No.V Bhubaneswar: 751054 District: Khordha. 4. Padan Behera Traffic Constable (OMVD) C/o: Office of R.T.O., Puri. W.P.(C) No.17057 of 2022 Petitioner. Page 1 of 98 5. Sisir Kumar Nayak Traffic Constable (OMVD) C/o: Office of R.T.O., Puri. … Counsel appeared for the parties: Opposite parties. For the Petitioner For the Opposite Party No.1 For the Opposite Party No.2 For the Opposite Party No.3 For the Opposite Party Nos.4 and 5 P R E S E N T: : M/s. Amitav Das, Ajit Kumar Dash, Mitali Madhusmita Mohanty and Basumati Pradhan, Advocates Mr. Sailaza Nandan Das, : Additional Standing Counsel Mr. Pravakar Behera : Standing Counsel (Transport) : M/s. Surya Narayan Patnaik, Priyambada Mohapatra, Sonali Mohapatra and Ashok Aurovindo Mohanty, Advocates : M/s. Bipin Kumar Choudhury : and Harekrushna Nayak, Advocates HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 05.09.2024 :: Date of Judgment : 24.12.2024 MURAHARI SRI RAMAN, J.— J UDGMENT Challenge is laid to the Order dated 22.05.2022 of the Principal Secretary to Government of Odisha in W.P.(C) No.17057 of 2022 Page 2 of 98 Commerce and Transport (Transport) Department issued vide No. 4341— TRN-FE-CASE-0003-2021/T, dated 23.05.2022 (Annexure-14), wherein the representation to consider selection of the petitioner for the post of Traffic Constable (OMVD) in Transport Department under the “unreserved (men)” category has been rejected. 1.1. Being dissatisfied with the Order dated 22.05.2022 (Annexure-14), the petitioner, invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, has filed the instant writ application with the following prayer(s): “It is, therefore, most humbly and respectfully prayed that this Hon‟ble Court may be graciously pleased to issue a Rule Nisi calling upon the opposite parties to show cause as to why: 1. 2. The Order No.4341 dated 23.05.2022 issued by opposite party No.1 under Annexure-14 shall not be quashed after declaring the same is illegal; The opposite party No.1 shall not be directed to consider the case of the petitioner on the basis of the direction given by this Hon‟ble Court on the basis of the Order dated 23.06.2021 passed in WPC (OAC) No.1214 of 2016 and order dated 07.04.2022 passed in W.P.(C) No.8604 of 2022; 3. Direction shall not be given to opposite party No.3 to recast the merit list under Annexure-3 by W.P.(C) No.17057 of 2022 Page 3 of 98 following Clause-11, i.e., Selection Procedure of the Advertisement; 4. 5. The selection of opposite party Nos.4 and 5 against unreserved vacancies shall not be held illegal; The opposite party No.3 shall not be directed to select the petitioner as Traffic Constable (OMVD) for Unreserved (Men) category; If the opposite parties fail to show cause or show insufficient cause, the rule may be made absolute; And pass any other order(s) as would be deem fit and proper;” Facts: 2. Facts emanating from the pleadings are narrated herein below for comprehension of issue involved in the present matter. 2.1. The petitioner, appointed on 28.07.2004 as a member of the Home Guards bearing No.60/HG in the Office of the Commandant of Home Guards, Puri, under the Odisha Home Guards Act, 1961, has undergone the Basic Course of training conducted from 02.01.2005 to 06.01.2006 and the Refresher Course of training conducted from 10.11.2006 to 31.12.2006. 2.2. In response to the advertisement dated 11.12.2014 issued by the Odisha Staff Selection Commission W.P.(C) No.17057 of 2022 Page 4 of 98 (“OSSC”, for short) inviting applications for recruitment to the post of Traffic Constable in OMVD under the Commerce and Transport (Transport) Department of Government of Odisha (for brevity, “Transport Department”), against 122 vacant posts (SC-20, ST-27, SEBC-14 and UR-61), the petitioner appeared in the written test held on 07.06.2015 under “unreserved” category, while the opposite party No.4 (Padan Behera) and the opposite party No.5 (Sisir Kumar Nayak) have appeared under the categories of Schedule Caste and Socially and Economically Backward Class respectively. However, the names of the opposite party Nos.4 and 5 have been reflected at serial Nos.26 and 40 respectively in the order of merit vide provisional select list published in the Notification No.4152—IIE-97/2015 (Conf)/OSSC, dated 07.09.2015. 2.3. The opposite party No.3-OSSC selected candidates in the following categories: Category Number of posts advertised Number of candidates selected Scheduled Caste Scheduled Tribes Socially and Economically Backward Unreserved 20 27 14 61 29 29 46 17 It is asserted at paragraph 9 of the writ petition that the number of selected candidates as mentioned in the W.P.(C) No.17057 of 2022 Page 5 of 98 above table as against number of vacancies advertised is in contradiction of conditions stipulated in Clause- 11 of the advertisement dated 11.12.20141 (Annexure- 1). 2.4. The petitioner filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985, before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, registered as O.A. No.1214 of 2016 which was re-registered as WPC (OAC) No.1214 of 2016 being transferred to this Court pursuant to abolition of said Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019), with a prayer to quash the provisional select list dated 07.09.2015 and recast the merit list in tune with Clause-11 of the Advertisement dated 11.12.2014. Said writ petition has come to be disposed of on 23.06.2021 with the following Order: “*** 1 Clause-11 of the Advertisement dated 11.12.2014 stood as follows: “Selection procedure.— The combined merit list shall be prepared basing on the aggregate of marks secured in the written examination and career evaluation. The candidates shall be selected in order of merit category-wise equal to the number of vacancies advertised.” W.P.(C) No.17057 of 2022 Page 6 of 98
Legal Reasoning
It appears, there is no resistance at the instance of the Petitioner to Annexure-3, re-casting of which is sought for in the present Writ Petition. However, the Petitioner has taken several grounds in his opposition to the list prepared, vide Annexure-3. The dispute was filed in the year 2016. There is no counter as of now. For the opinion of this Court, involving the dispute raised herein, in the first hand, the Competent Authority is required to take call on the request of the Petitioner. It is in this view of the matter, this Court directs O.P.1 to treat this Writ Petition as a representation at the instance of the Petitioner by way of objection to Annexure-3 and if necessary, by involving the parties likely to be affected by completing the entire exercise within a period of three months from the date of communication of this order. With the above, the Writ Petition stands disposed of.” take decision on the same, 2.5. In compliance thereof, the opposite party No.1 having rejected the representation, as stated to have been communicated to him along with copy of writ petition as well as aforesaid order of this Court by Speed Post on 02.07.2021, by Order No.9556— TRN-FE-CASE- 0003-2021/T, dated 09.11.2021 the petitioner under constraint had to approach this Court by filing writ petition bearing W.P.(C) No.8604 of 2022, which was disposed of vide Order dated 07.04.2022 with the following observations: “3. This writ petition has been filed by the Petitioner thereby challenging the order dated 09.11.2021 W.P.(C) No.17057 of 2022 Page 7 of 98 passed by the Commissioner-cum-Secretary to Government, Commerce & TransportOpposite Party No.1. the Authority 4. As it appears from the order, pursuant to the direction of this Court dated 23.06.2021 passed in WPC (OAC) No.1214 of 2016 (Ramakanta Pradhan Vrs. State of Odisha & Others), petitioner had a approached comprehensive representation. There was a specific direction in the said writ petition to the into consideration certain effect guidelines as has been laid down in order dated to be 23.06.2016, considered and disposed of. However, the representation of the petitioner has been rejected on 09.07.2021 by the Authority. representation was taking filing that the by No.1 Party 5. On a perusal of the impugned order, it appears that F.A.-cum-Special Secretary to Government-Opposite has although discussed the principle, but it appears that the fact of the present case has not been discussed and it has not been stated as to how the petitioner is not entitled to the benefit claimed by him. However, learned counsel for the petitioner relying on certain judgments submits that the Petitioner belong to a separate category. The category the Petitioner belongs to cannot be transferred under the U.R. category. In such view of the matter, learned counsel for the petitioner urges that the Authority be directed to consider the matter in the light of the judgments relied upon by the Petitioner as well as earlier direction of this Court. W.P.(C) No.17057 of 2022 Page 8 of 98 6. Learned counsel for the State on the other hand submits that the Authority has not committed any illegality by taking into consideration the judgment of the Hon‟ble Supreme Court and rejecting the same with reason. However, he also admits that facts have not been analyzed in the impugned order and it has also not been stated as to how the petitioner is not entitled to the benefit. the Opposite Party No.1 7. Considering the rival contentions of the parties and taking into consideration the judgments of the Hon‟ble Supreme Court, this Court is of the considered view that the order dated 09.11.2021 passed by is not sustainable in the eye of law, accordingly, the same is hereby quashed. Further the Opposite Party No.1 is directed to consider the matter afresh after giving opportunity of hearing to the present petitioner. Further it is open for the opposite party No.1 to decide whether hearing the affected parties required or not and in the event the same is required they may be noticed. Opposite Party No.1 shall do well to complete the entire exercise within a period of three months from the date of certified copy of this order. 8. With the aforesaid observation, the writ petition
Decision
stands disposed of.” 2.6. Upon fresh consideration as directed by this Court vide Order dated 07.04.2022, the Principal Secretary of Transport Department vide Order No.4341— TRN- FE-CASE-0003-2021/T, dated 23.05.2022, rejected W.P.(C) No.17057 of 2022 Page 9 of 98 the claim of the petitioner and communicated vide Memo No.4342/T, dated 23.05.2022 (Annexure-14), content of which is reproduced hereunder: “*** Whereas during hearing, observation of Hon‟ble Apex Court in the case of Civil Appeal No.74 of 2010 filed by Jitendra Kumar Singh & another Vrs. State of UP and others2 was discussed, which says that „if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. The concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit.‟ Whereas, in the case of Civil Appeal No.7211-7212 of 2019 filed by Pradeep Singh Dehal Vrs. State of Himachal Pradesh and others3 was discussed. In the said case the Hon‟ble Apex Court has observed that, „every person is a general category candidate. The benefit of reservation is conferred to Scheduled Castes, Scheduled Tribes and OBC category candidates or such other category as is permissible under law. It is a consistent view of this Court starting from Indra 2 3