Opposite Parties v. Advocate(s) appeared in this case
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Aug-2025 19:11:07 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21534 of 2021 (An application under Articles 226 & 227 of the Constitution of India) Bishnupriya Mandal …… Petitioner State of Odisha and others …... Opposite Parties Versus Advocate(s) appeared in this case :- For Petitioner For Opposite Parties : :
Legal Reasoning
64. Thus, in light of the decision in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a candidate placed in the select list gets no indefeasible right to be appointed even if vacancies are available. Similar was the view taken by this Court in State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 where against 15 vacancies only top 7 from the select list were appointed. But there is a caveat. The State or instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State's action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the select list. its xxx xxx xxx 65.6. Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.” 10. It needs to be mentioned here that in the case at hand, had the case been that 100% vacancies in SEBC category have been filled up and the last candidate secured more marks than the Petitioner, then there would have been no case for the Petitioner to get appointment in the post claim W.P.(C) No.21534 of 2021 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Aug-2025 19:11:07 for. But it is not so in the present case, where the Opposite Parties have closed appointment after filling up 64 vacancies only out of 92 vacancies meant in SEBC category. Therefore such submission advanced by State- Opposite Parties that the Petitioner did not qualify the cut off mark to be selected to the post could not be approved. It is unfair and unjust on the part of the Opposite Parties to deprive the Petitioner from getting appointment without filling up 100% of the vacancy meant for the category advertised under Annexure-3. Therefore, good reasons are seen in favour of the prayer of the Petitioner to be selected for appointment as Hindi Teacher under SEBC category. 11. Since the merit list shows that the entire vacancies meant for SEBC category was not filled up, there cannot be any hindrance to give appointment to the Petitioner as SEBC candidate. Accordingly, the impugned order under Annexure-10 is quashed and the prayer of the Petitioner is allowed. The Opposite Parties are directed to extend appointment in favour of the Petitioner as Hindi Teacher under SEBC category with immediate effect upon receipt of certified copy of this order.
Arguments
Mr.S.K.Das, Advocate Mr.S.K.Rout, ASC CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 5th August 2025 B.P. Routray,J. 1. The Petitioner, who is the applicant for the post of Hindi Teacher pursuant to the advertisement dated 27th October 2014 under Annexure-2, claims for her appointment as such in terms of the selection procedure undertaken by the Opposite Parties. 2. Heard Mr.Das, learned counsel for the Petitioner and Mr.Rout, learned Additional Standing Counsel for the State-Opposite Parties. 3. It is submitted by Mr.Das on behalf of the Petitioner that total number of posts advertised for Hindi Teacher in different districts of the State is 799, out of which taking reservation @11.25% for SEBC, as prescribed in the advertisement, the total number of posts reserved for W.P.(C) No.21534 of 2021 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Aug-2025 19:11:07 SEBC comes to 92. But, the Opposite Parties without filling up all such posts meant for SEBC, only filled 64 posts depriving the Petitioner from appointment. It is further submitted that while considering for appointment, some untrained candidates placed below to the Petitioner in the merit list have been given appointment. 4. The State has filed its counter stating that out of total number of posts advertised, 546 posts of Hindi Teacher have been filled up and the rest 256 posts belonging to SC & ST category were carried forward to next year due to non-availability of candidates belonging to said category. This Court vide order dated 2nd April 2025 directed the Director of Secondary Education (Opposite Party No.2) to furnish the break up list of candidates selected in the category of SEBC for the post of Hindi Teacher, and in reply to the same, Opposite Party No.2 filed the entire selection list of 546 candidates vide his instruction dated 19th April 2025 given to learned Advocate General. The said instruction along with the selection list furnished by Opposite Party No.2 has been taken on record and it reveals from the said selection list that total number of SEBC candidate selected for the post of Hindi Teacher are totaling 64 candidates. 5. Being asked the same, no satisfactory answer could be given by learned Additional Standing Counsel as to why the total number of 92 posts meant for SEBC candidates in the post of Hindi Teacher was not filled up. 6. It is submitted by Mr.Rout, leaned Additional Standing Counsel that cut off mark for selection to the post of Hindi Teacher has been fixed at 199.33, whereas the Petitioner secured only 194.22 and therefore her appointment to the post claimed for could not be possible. W.P.(C) No.21534 of 2021 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Aug-2025 19:11:07 7. It is seen from the advertisement that no such minimum qualifying cut off mark has been prescribed in the advertisement under Annexure-3 or the Resolution of the State under Annexure-2. It is specifically instructed at Clause-8 of the Resolution that the merit list with 100% of the number of vacancies in different category of candidates shall be prepared on the basis of percentage of marks. Therefore, the plea taken by the State at the present stage that the Petitioner did not qualify the minimum cut off mark of 199.33 is not conceivable and at the same time the State-Opposite Parties have failed to explain any valid reason for not filling up 100% of the vacancies in the post of Hindi Teacher in SEBC category. The fact as reveals from the selection list furnished by Opposite Party No.2 in his instruction dated 19th April 2025 is that only 64 candidates in SEBC category have been given appointment against the vacancy of 92 posts in such category of posts of Hindi Teacher. Therefore, it is apparent on record that the Opposite Parties without any valid reason did not fill up the entire vacancies, thereby depriving the Petitioner from appointment to the post of Hindi Teacher. 8. In East Coast Railway and another -Vrs- Mahadev Appa Rao and others, (2010) 7SCC 678, it has been held that; “14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter. W.P.(C) No.21534 of 2021 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Aug-2025 19:11:07 15. To the same effect is the decision of this Court in UT of Chandigarh v. Dilbagh Singh (1993) 1 SCC 154 where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a mala fide manner … … ..” 9. In Tej Prakash Pathak and others -Vrs- Rajasthan High Court and others, (2025) 2 SCC 1, it is held that;
Decision
10. The writ petition is disposed of. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.21534 of 2021 Page 5 of 5