The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) NO.3285 of 2018 B. Abakash ..... Petitioner Mr. B.B. Mohanty, Adv. State of Odisha & Others -versus- ..... Opposite Parties Mr. S.K. Jee, AGA Mr. T. Pattanaik, Adv. (for O.P. NO.3) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 21.01.2025 Order No.08 1. This matter is taken up through hybrid mode. 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia with the following prayer: (i) The Original Application be allowed; (ii)This Hon’ble Tribunal may be pleased to quash the order dated 30.07.2018 and direct the respondent to issue order of appointment in favour of the applicant by re-drawing the select list afresh in compliance of the order dated 29.01.2014 in O.A. NO.2478(C ) of 2013 in pursuance of the advertisement No.2 of 2012-13 confirmed by order of the Hon’ble High Court in W.P.(c)No.2904 of 2014 forthwith or within a time to be stipulated by this Hon’ble Tribunal with all consequential and financial benefits forthwith or within a time to be stipulated by this Hon’ble Tribunal. 4. It is contended that pursuant to the selection process initiated by the Orissa Public Service Commission (in short “The Commission”) vide Advt. No.02 of 2012-13, the Commission vide notice Page 1 of 9. dt.17.07.2013 under Annexure-2 recommended 38 nos. of candidates, the total number of posts advertised in different categories. In the said recommendation, name of the Petitioner finds place at Sl. No.14 and name of one Susil Kumar Meher was at Sl. No.13 in SEBC category. 4.1.It is contended that challenging the recommendation made by the Commission vide notice dt.17.07.2013 under Annexure-2, one Anjelina Pattanaik approached the Tribunal by filing OA No.2478 (C ) of 2013. In the said Original Application none of the selectees were impleaded as party to the proceeding. The Tribunal however vide order dt.29.01.2014 under Annexure-4 while disposing the Original Application directed for preparation of a fresh select list and to confine the reservation to the extent of 50%. 4.2.It is contended that the order passed by the Tribunal in OA
Legal Reasoning
No.2478 (C ) of 2013 was challenged by the present Petitioner and others before this Court by filing WP(C ) Nos.3454 and 2907 of 2014. Pursuant to the interim order passed by this Court, while preparing a fresh select list the Commission when recommended a list of 29 candidates in different categories, order of appointment was issued by the Government in the Department of Energy vide order dt.27.02.2015 under Annexure-5. 4.3. It is contended that out of those 29 candidates who were provided with the appointment basing on the fresh select list published and recommended by the Commission, persons placed from Sl. Nos. 1 to 12 under Annexure-2 got the benefit of appointment in UR & SEBC category. Not only that candidates placed at Sl. Nos.2,3,4, 5 & 10 were selected under UR category, even though they belong to SEBC. Similarly, candidates placed at Page 2 of 9. Sl. NO.7,9,11 & 12 were selected under SEBC category, having belong to SEBC. It is further contended that W.P(C ) Nos.3454 & 2907 of 2014 was finally disposed of vide judgment dt.29.06.2017 under Annexure-10. This Court while confirming the order passed by the Tribunal under Annexure-4 made the following observation taking into account the vacancy remained to be filled up because of non-joining of some candidates who were provided with the appointment vide order dt.27.02.2015. xxx xxx xxx However, since the State has come out with a specific stand in the affidavit regarding the position of vacancies as would be evident from the affidavit filed on behalf of the State at paragraph 8 & 9, we remit the matter before the State Government to take decision in accordance with law for fulfilling the vacancies as has been referred in the affidavit within stipulated period, preferably within six (6) weeks from the date of receipt of copy of this order. Xxx xxx xxx
Legal Reasoning
4.4. Learned counsel for the Petitioner contended that as against the 29 persons who were provided with the appointment vide order dt.27.02.2015 under Annexure-5, persons placed at Sl. Nos.1,2 & 4 never joined. It is contended that persons placed at Sl. No.2 though belongs to SEBC category, but he was appointed as against the vacancy meant for General category, taking into account his position in the merit list. Similarly, persons placed at Sl. No.4 though belongs to SEBC, but he was also appointed as against UR vacancy. 4.5. It is contended that taking into account the position of the petitioner at Sl. No.14 of the list published under Annexure-2 as well as Annexure-5, because of the non-joining of the candidate placed at Sl. Nos.2 & 4 of the said list and consequential order dt.27.02.2015, Page 3 of 9. under Annexure-5, Petitioner became entitled to get the benefit of appointment as against those two (2) unfilled UR vacancies in SEBC category with due adjustment of the candidates placed at Sl. No.7 and 9. It is contended that due to non-joining of the candidates placed at Sl. Nos.2 & 4, both of whom were appointed as against UR vacancies, even though they belong to SEBC category, the said two vacancies were required to be filled up by appointing candidates placed at Sl. Nos. 7 and 9, as both of them were appointed against SEBC vacancies. Taking into account the position of the candidates placed at 7 & 9 vis-(cid:224)-vis sl. No.s 8 & 10, due to non-joining of the candidates placed at Sl. No.2 & 4, candidates placed at Sl. NO.7 & 9 were required to be selected under UR category and thereby causing 2 vacancies in SEBC category. 4.6 It is contended that taking into account the vacancies available by
Decision
the time W.P(C ) No.3454 & 2907 of 2014 were disposed of by this Court vide judgment dt. 27.06.2017, this Court directed to fill up those vacancies in accordance with law. 4.7. It is contended that since the Petitioner was placed at Sl. No.14 of the merit list and candidates placed at Sl. Nos.2 & 4 having been appointed as against UR vacancies though belong to SEBC category, Petitioner became eligible to get the benefit of appointment against those two vacancies with due adjustment of two of the SEBC candidates placed at Sl. Nos. 7 and 9. However, without proper appreciation of the law governing the filed and the direction contained in judgment dt.27.06.2017 , claim of the Petitioner was rejected vide the impugned order dt.30.07.2018 under Annexure-11. 4.8.It is contended that Opp. Party No.1 rejected such claim of the Petitioner inter alia on the ground that person placed at Sl. No.13 Page 4 of 9. having been adjusted as against the vacancy caused due to non-joining of the person placed at Sl. No.12 who was appointed as against the SEBC vacancies, the percentage of reservation meant for SEBC category was filled up to the extent of 11.25%. Accordingly, Petitioner having belong to SEBC category and there being no vacancy available after appointment of the candidate placed at Sl. No.13, Petitioner is not eligible to get the benefit of appointment as an SEBC Category candidate against the available vacancies. 4.9. Learned counsel for the Petitioner contended that taking into account the position of the Petitioner at Sl. No.14 of the merit list and the appointment of Sl. Nos.1,2 & 4 as against UR vacancies though they belong to SEBC category, after appointment of the person placed at Sl. No.13 as against the vacancy caused due to non-joining of the candidate placed at Sl.No.12, , Petitioner became eligible to get the benefit of appointment as against those 2 unfilled UR vacancies i.e. Sl. Nos. 2 & 4 with due adjustment of the candidates placed at Sl Nos.7 and 9 as against Sl. Nos.2 & 4. But without proper appreciations of the reservation principle and the orders passed by this Court under Annexure-10, claim of the Petitioner was rejected vide the impugned order under Annexure-11. It is accordingly contended that Petitioner is eligible and entitled to get the benefit of appointment as against those unfilled vacancies due to non-joining of the candidate placed at Sl. Nos. 2 & 4 under UR category. 5. Mr. S.K. Jee, learned Addl. Government Advocate, while supporting the impugned order contended that basing on the interim order passed by this Court on 22.12.2014 in W.P(C ) No.2904 & 3454 of 2014 while preparing a fresh select list, 29 candidates were recommended by the Commission and accordingly all those 29 Page 5 of 9. candidates were provided with the appointment vide order of appointment issued on 27.02.2015 under Annexure-5. It is contended that all those 29 candidates who were provided with the appointment vide notification dt.27.02.2015, persons placed at sl. No.1 to 12 were appointed as against UR and SEBC vacancy. Due to non-joining of the candidate placed at Sl. No.12 of Annexure-5 in SEBC category, candidate placed at Sl. No.13 of the merit list was appointed against that vacancy in SEBC category vide order dt.03.03.2017 under Annexure-13 series. 5.1 It is contended that since the vacancy arising due to non-joining of the SEBC category candidate placed at Sl. No.12, candidate placed at Sl. No.13 pursuant to the order passed by the Tribunal in O.A No.760 of 2016 was adjusted in SEBC category, Petitioner having belong to SEBC category and all the post meant for SEBC category, after appointment of the candidate placed at Sl. No.13 being filled up to the extent of 11.25%, Petitioner was not found eligible to get the benefit against those unfilled vacancies in terms of the order passed by this Court under Annexure-10. It is accordingly contended that no illegality or irregularity can be found with the rejection of the Petitioner’s claim vide the impugned order. 6. Mr. Tarun Pattanaik, learned counsel appearing for the Commission does not dispute the stand taken in the Writ Petition as well as in the counter affidavit regarding preparation of the merit list by the Commission vide notice dt.17.07.2013 under Annexure-2 and appointment of 29 candidates basing on further recommendation by the Government vide order dt.27.02.2015 under Annexure-5. 7. Having heard learned counsel for the parties and considering the submission made, it is found that pursuant to the advertisement Page 6 of 9. issued by the Commission under Annexure-1, the Commission initially vide notice dt.17.07.2013 under Annexure-2 recommended 38 candidates as against the post of Ass. Engineer, (Electrical )in Class-II (Group-B). Petitioner is placed at Sl. No.4 having belong to SEBC category. The recommendation made vide notice dt.17.07.2013 was the subject matter of challenge before the Tribunal in OA No.2478(C ) of 2013. The Tribunal vide order dt.29.01.2014 under Annexure-4 when directed to prepare the select list afresh by confining the reservation at 50%, the same was challenged by the present Petitioner and others before this Court in W.P.(C ) No.2904 of 2014 and W.P.(C ) No.3454 of 2014. 7.1 Basing on the interim order passed by this Court on 22.12.2014, 29 candidates were provided with the appointment vide order of appointment issued by the Government-Opp. Party No.1 on 27.02.2015 under Annexure-5. As found from the notification under Annexure-5, candidates placed at Sl. No.1 to 12 were appointed as against the vacancy meant for UR & SEBC category. 7.2. It is also found that persons placed at Sl. No.2 & 4 though belong to SEBC category, but they were provided with the appointment as against UR vacancies taking into account their position in the merit list prepared by the Commission under Annexure-2. 7.3. As further found from the pleadings, due to non-joining of the candidate appointed at Sl. No.12 who belongs to SEBC category, candidate placed at Sl. No.13 and belonging to SEBC category was adjusted. The stand taken by the opp. Parties while rejecting the petitioner’s claim that due appointment of the person placed at Sl. No.13 against the vacancy caused due to non-joining of candidates at Page 7 of 9. Sl. No.12, the reservation percentage in SEBC category stands filled up to the extent of 11.25% though is not disputed, but it is the view of this Court that since persons placed at Sl. Nos. 2 & 4 were appointed as against UR vacancies though belong to SEBC category, taking into account the position of the Petitioner in the merit list at Sl. No.14 and the Position off the candidates placed at Sl. Nos. 7 & 9 both of whom belong to SEBC category, Sl.Nos.7 & 9 should have been adjusted against the vacancies caused at Sl. Nos.2 and 4. After such adjustment of the candidates placed at Sl. Nos. 7 & and 9, Petitioner should have been appointed as against one of the vacancy caused at Sl. Nos.7 & 9. 7.4 Therefore, the ground on which Petitioner’s claim has been rejected vide the impugned order dt.30.07.2018 under Annexure-11 as per the considered view of this Court is not sustainable in the eye of law. Therefore, this Court is inclined to quash the said order and while quashing the same directs Opp. Party No.1 to provide appointment to the Petitioner as against the vacancies caused due to non joining of the candidate placed as Sl. Nos. 2 & 4 with due adjustment of the candidates placed at Sl. Nos.7 & 9 against those two vacancies and appointing the Petitioner as against the vacancy caused on such adjustment of the candidates, placed at Sl. NO.7 & 9 in SEBC category. 7.5 This Court accordingly Opp. Party No.1 to provide appointment to the Petitioner within a period of four (4) weeks from the date of receipt of this order. But such order of appointment shall be prospective in nature and Petitioner will not claim any benefit of seniority vis-(cid:224)-vis the candidates appointed in terms of Annexure-5 or appointment of the candidate placed at Sl. No.13, who was Page 8 of 9. appointed vide order dt.03.03.2017. Petitioner is directed to file an undertaking that he will not claim any seniority after being provided with the appointment in terms of the present order at the time of his joining. The Writ Petition accordingly stands disposed of. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 03-Feb-2025 17:21:38 Page 9 of 9.