The High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 21423 of 2021 (An application under Articles 226 & 227 of the Constitution of India) Shashikanta Swain & Anr. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Budhadev Routray, Sr.Advocate
Legal Reasoning
A Division Bench of this Court in Prasanna Kumar Nayak & Ors. v. National Insurance Co. & Ors., VOL 73 (1992) C.L.T. 791, have observed as follows:- “7. However, to take care of the submission of Shri Nanda that if the opposite parties would be directed to absorb the four petitioners in the posts of Assistant (Typist), it would be not permissible for W.P.(C) No.21423 of 2021 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 them to deny appointment to other persons whose names found place in the aforesaid select list, because of which the opposite parties shall have to give appointment to all the persons who had been selected and whose names are in the list. In this connection, we would like to say that there would be no such compulsion on the part of the opposite parties and the present decision of ours would not clothe other persons with any right whose names are in the select list but who had slept over the matter for long. Law permits Courts to grant and confine relief to those who come before them and to observe that the same would not be available proprio vigore to those similarly situated but who had chosen to sleep over their rights. Vigilance is said to be the price of liberty. We, therefore, make it clear that this decision of ours would not ipso facto clothe other persons whose names found place in the aforesaid list to claim appointment on the basis of this decision. 9. The vacancy of three posts which arises due to non-joining of three special category candidates under UR category, as has been stated by the Petitioners in their additional affidavit dated 17th September 2021, is never disputed by the Opposite Parties. The contention of the Petitioners that no other candidates in between the marks 113 and 109 have raised their claim for appointment is also not specifically denied by the Opposite Parties. This Court while issuing notice has directed as an interim measure on 30th July 2021 that any appointment made to the posts of Inspector of Supplies pursuant to the advertisement under Annexure-1 shall be subject to result of the writ petition. 10. So in the circumstances, when three vacancies advertised for are lying vacant till date and no other person above the Petitioners W.P.(C) No.21423 of 2021 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 have raised their claim, there cannot be any hurdle for directing for appointment of the Petitioners to such vacancies. 11. Accordingly, the Opposite Parties, particularly Opposite Party No.1 is directed to extend appointment in favour of the Petitioners for the post of Inspector of Supplies as per the advertisement under Annexure-1, within a period of two months from the date of receipt of certified copy of this order, subject to availability of vacancies pursuant to the advertisement are there till date and that, no other person securing more marks in the selection test than the Petitioners have raised their claim for appointment till date. 12.
Arguments
: For Opposite Parties Mr. G.Tripathy, AGA Mr. S.Swain, Advocate for O.P.No.2 CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 18th November 2024 B.P. Routray,J. 1. Heard Mr. B.Routray, learned Senior Counsel for the Petitioners, Mr. S.Swain learned counsel for Opposite Party No. 2 and Mr. G.Tripathy, learned AGA for State-Opposite Party. 2. The Petitioners have applied for the post of Inspector of Supplies in Foods Supplies and Consumer Welfare Department, Government of Odisha as per Advertisement No.78/2017/3237/OSSC dated 8th September 2017. The Odisha Staff Selection Commission (OSSC) (Opposite Party No.2) conducted the recruitment test and prepared the selection list as per Annexure-2. As per said selection list W.P.(C) No.21423 of 2021 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 dated 17th May 2021 at Annexure-2, 74 candidates were selected including 37 from UR category, 13 from SC category and 24 from ST category. The last person selected in UR category secured 113 marks and both Petitioners, who belong to UR category, secured 109 marks each. Therefore, the names of the Petitioner did not find place in the selection list under Annexure-2. 3. Mr.Routray, learned Senior Counsel for the Petitioners submits on behalf of them that the reservation meant for special categories in PwD, Ex-servicemen and Sportsperson has to be maintained in all the categories horizontally and proportionately. But Opposite Party No.2 has made the selection of special category candidates only from UR category without taking note of the percentage of proportion of reservation for PwD, Ex-Servicemen and Sportsperson categories. According to him, had these special categories been proportionately divided among the reserved categories horizontally, there would have been a chance of selection of these two Petitioners under UR category since they have secured more marks than those candidates selected under special categories. 4. Odisha Staff Selection Commission have filed their counter affidavit explaining the process selection and reservations effected therein. It is true that the candidates coming under special categories of PwD, Ex-Servicemen and Sportsperson were all fall within UR category to find their place in the selection list (Annexure-2) under UR category. As seen from the table mentioned at Para-10 of the counter of Opposite Party No.2, such candidates under special W.P.(C) No.21423 of 2021 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 category have secured marks from 81 to 104 and have been selected under such respective special categories. 5. According to Section 34 of the Persons of Disability Act, 2016, there should be reservation to the extent of 4% on the whole vacancy subject to satisfaction of the prescribed norms of disability. Similar is the case for reservation under Ex-Servicemen and Sportsperson as per prescribed guidelines and circulars. 6. To make reservation under the special category of PwD, it depends on which category they fall in i.e. whether UR/SEBC/SC or ST. When all such PwD candidates selected as per Annexure-2 are seen falling under UR category, their selection for said UR category taking the number of posts against the whole number of vacancies is the right procedure, as done by Opposite Party No.2. The submission of the Petitioners to sub-divide the numbers among each category horizontally and harmoniously is not acceptable. It depends on such candidate, under PwD category or other special categories, falling under which reserved category or in the unreserved category. But one thing to be maintained is that, the number of reserved posts has to be maintained as a whole. While taking this number of special reserved posts within main category, it does not matter under which reserved class they fall or under the unreserved class, but their number has to be maintained against whole vacancies advertised. Accordingly, no fault is seen in the selection of candidates particularly in respect of reservation of these special category candidates. 7. It is here submitted by Mr.Routray, learned Senior Counsel that the persons namely, Subash Chandra Sahoo under Ex- W.P.(C) No.21423 of 2021 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 11:53:42 Serviceman category, Sudhir Kumar Sahoo under PwD category and Manas Kumar Nayak under PwD category did not join in the posts since Subash Chandra Sahoo left voluntarily without joining the post and Sudhir Kumar Sahoo and Manas Kumar Nayak were found disqualified during verification of documents. Mr.Routray, learned Senior Counsel accordingly prays for inclusion of these two Petitioners in the selection list for they have secured much more marks i.e. 109 in the selection list. Mr.Tripathy, learned AGA replies that when the last candidate from UR category secured 113 marks and the Petitioners have admittedly secured 109 marks only their right does not come for consideration to be included in the selection list. According to the Petitioners, no other candidates participated in the selection process have raised their claim for appointment to the post by inclusion of their names in the selection list and those persons who are sleeping till date without raising their claim for appointment due to leaving of vacancies for non-joining of selected candidates, there cannot be any prohibition on the part of the authority to take present Petitioners who are fighting their right till date. 8.
Decision
The writ petition is disposed of with aforesaid observations and directions. Judge (B.P. Routray) Sangram,Sr.Steno W.P.(C) No.21423 of 2021 Page 6 of 6