The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2678 of 2018 Madhab Chandra Biswal …. Petitioner Mr. G.R. Sethi, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 25.07.2024 Order No. 09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia challenging the non-consideration of his application as an Ex-Army Man pursuant to the advertisement issued by the State Selection Board, Odisha Police, Cuttack under Annexure-1. 4. It is contended that vide the said advertisement applications were invited to fill up 1722 posts of constables which includes 22 posts in respect of Nayagarh District. 4.1. It is contended that in terms of the advertisement, Petitioner made his application indicating therein that he // 2 // is an Ex-Army Man and the application was also accordingly accepted. 4.2. It is further contended that in terms of the provisions contained in the notification issued by the General Administration Department under Annexure-5, 3% of the vacancies arising in a year in each of the categories of Class-II and Class-III posts shall be reserved for being filled up by Ex- Service Man as per roster point. 4.3. It is however contended that on the face of such clear provisions contained in the notification issued by the General Administration Department under Annexure-5, claim of the Petitioner was never considered as an Ex- Service man and accordingly being aggrieved, the present Writ Petition has been filed. 4.4. It is contended that since as against the District Nayagarh, 22 posts were advertised, Petitioner’s claim should have been considered by taking him as an Ex- Service man. But in the recruitment process in question, no post was filled up from amongst eligible candidates belong to Ex-Service man category. 4.5. It is accordingly contended that the selection process conducted by Opposite Party No.3 in respect of Nayagarh District is not sustainable in the eye of law. Page 2 of 6 // 3 //
Legal Reasoning
5. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.4. 5.1. It is contended that even though in terms of the notification issued under Annexure-5, 3% of the vacancies is reserved for Ex-service man, but since in the impugned advertisement issued under Annexure-1 in respect of Nayagarh District, only 22 vacancies were advertised, 3% of the same comes to 0.66, which is less than one. Accordingly, no reservation was extended in favour of candidates belong to Ex-service man category in Nayagarh District. 5.2. It is contended that since there was no reservation available in respect of Ex-Service man category candidate in the district of Nayagarh, Petitioner’s candidature was considered as a SEBC category candidates. 5.3. It is also contended that in respect of SEBC category candidate the last such candidate appointed has secured 54 marks, whereas the Petitioner has secured 50 marks. 5.4. It is accordingly contended that no illegality or irregularity can be found with regard to the selection process undertaken by Opposite Party No.3 in respect of Nayagarh District. Page 3 of 6 // 4 // 6. To the stand taken in the counter affidavit, learned counsel for the Petitioner contended that since in the advertisement in question 22 posts were advertised in respect of Nayagarh District and 3% of the same comes to 0.66, in view of the decision of the Hon’ble Apex Court in the case of Bhudev Sharma vs. District Judge, Bulandshahr & Another reported in (2008) 1 SCC 233, the said 0.66 is required to be rounded off to 1 post. The view expressed by Hon’ble Apex Court in Para-3 of the order reads as follows:- “3. The appellant has relied on G.O. dated 26-8-1993 which is Annexure P-I to this appeal. That G.O. states that the U.P. Government has reserved 2 per cent posts for physically handicapped persons for direct recruitment in The physically all groups of government services. handicapped persons are those who are blind, deaf and dumb and otherwise handicapped. There were altogether 30 posts for which the selection was held.2 per cent of 30 is 0.6. Since 0.6. is more than half we round it off and hold that one out of the 30 posts is reserved for physically handicapped persons. Since there was no other physically handicapped persons who applied, in our opinion, the appellant was entitled to the post reserved for physically handicapped persons”. 6.1. Placing reliance on the decision, learned counsel for the Petitioner contended that in view of the decision so cited (supra), 1 post should have been reserved for Ex- Service man category and as against the said 1 post, Petitioner’s case could have been considered. It is also contended that all 22 posts so advertised have not been filled up and some vacancies are available as on date. It Page 4 of 6 // 5 // is accordingly contended that Opposite Party No.4 be directed to consider the claim of the Petitioner as against such available vacancies. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that pursuant to the advertisement issued under Annexure-1, Petitioner made his application as against the vacancies available in the district of Naygarh. In the advertisement so issued, 22 posts were shown vacant as against the district of Nayagarh and considering the guideline issued vide notification under Annexure-5 and the decision as cited (supra), it is view of this Court that case of the Petitioner should have been considered as an Ex-Service man candidate. However, since the recruitment is of the year 2018 and there is no interim order protecting the interest of the Petitioner, this Court is not inclined to pass any positive direction with regard to the claim of the Petitioner. 7.1. It is however observed that if as contented some vacancies are available as on date in terms of the recruitment process initiated under Annexure-1, Petitioner is permitted to make an appropriate application before Opposite Party No.4 for consideration of his claim as against those available vacancies. 7.2. It is observed that if any such application is moved within a period of three (3) weeks from today, Opposite Page 5 of 6 // 6 // Party No.4 shall take a lawful decision on the same within a further period of three (months) from the date of receipt of the application with due communication to the Petitioner.
Decision
8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Jul-2024 19:37:39 Page 6 of 6