The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.2695 of 2018 Sourajit Das …. Petitioner Mr. G.R. Sethi, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 05.04.2023 Order No 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
119, no more holds the field. It is also contended that this Court in its order dtd.31.01.2023 in W.P.C.(OA) No. 2933 of 2013 relying on the decision in the case of Nirav Kumar Dilipbhai Makwana held that once a person has availed the benefit of relaxation as a reserve category candidate, he cannot be selected as against UR vacancy. The view expressed by this Court in Para 6.1 and 6.2 of the said order is reproduced hereunder:- <6.1. The claim of the Petitioner that since the Petitioner has secured more marks than the last candidate selected in UR category i.e. Opposite Party No.4, the Petitioner should have been selected in view of the decision of the Hon’ble Apex Court in the case of Pradeep Singh Dehal and Jitender Kumar Singh as cited (supra), but the said view is no more res-integra, in view of the subsequent decision of the Hon’ble Apex Court reported in case of Nirav Kumar Dilipbhai Makwana v. Gujarat Public Service Commission and Others. 6.2. Since the Petitioner has admittedly availed the benefit of age relaxation while taking part in the selection process as SC category candidate, in view of the subsequent decision in Page 3 of 5 // 4 // Nirav Kumar Dilipbhai Makwana, the Petitioner cannot claim the benefit of selection as against UR vacancies after availing the benefit of age relaxation as a SC category candidates. Therefore, this Court finds no illegality or irregularity in the selection process so undertaken by the Opposite Party Nos.1 to 3. Hence, this Court is not inclined
Arguments
2. Heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Since in spite of service of notice nobody entered appearance on behalf of Opp. Party Nos. 6 & 7, this Court vide order dtd.03.04.2023 held the notice against Opp. Party Nos. 6 & 7 as sufficient. 4. This writ petition has been filed by the Petitioner challenging the selection/appointment of Opp. Party Nos. 6 & 7 in terms of the revised merit list published under Annexure-3 and with a further prayer to direct the Opp. Parties to appoint the Petitioner as a Constable in terms of the selection process initiated under Annexure-1. // 2 // 5. It is the main contention of the learned counsel for the Petitioner that the Opp. Party No. 6 made his application in respect of the vacancies meant for Home Guards and Opp. Party No. 7 made his application as reserved category candidate having belong to SEBC. Because of his making the application as a SEBC candidate, O.P. No. 7 availed the benefit of age relaxation and allowed to take part in the selection process. It is also contended that the Petitioner as well as Opp. Party No. 7 though secured same mark, but O.P. No. 7 was selected as against UR category even after availing the benefit of age relaxation having belong to SEBC category. It is also contended that Opp. Party No. 6 since made his application in Home guard category, he should have been selected as against the posts reserved for Home Guards instead of being selected as against UR category. 5.1. It is contended that in the revised select list issued by the Authority under Annexure-3, the Petitioner as well as Opp. Party No. 7 were placed at Sl. Nos. 97 & 98, both having secured 65 mark in aggregate. But it is contended that Opp. Party No. 7 in spite of availing the benefit of age relaxation having belong to SEBC category, he was wrongly selected as against UR category. Similarly, it is contended that Opp. Party No. 6 though has secured more mark than the Petitioner as well as O.P. No.7 as reflected in the revised select list published under Annexure-3, but since he had made his application as a Home Guard, he should have been appointed as against the post reserved for Home Guards. It is accordingly contended that the selection/appointment of Opp. Party Nos. 6 & 7 as against UR category is not sustainable in the eye of law. Page 2 of 5 // 3 // 5.2. Mr. Sethi, learned counsel for the Petitioner in support of his aforesaid contention relied on a decision of the Hon’ble Apex Court in the case of Nirav Kumar Dilipbhai Makwana v. Gujarat Public Service Commission and Others reported in (2019) 7 SCC 383. It is contended that in view of decision of the Hon’ble Apex Court, the decision rendered in the case of Jitendra Kumar Singh and Anr. Vs. State of Uttar Pradesh & Ors. reported in (2010) 3 SCC
Decision
to entertain the prayer as made in the Writ Petition and the Writ Petition is accordingly dismissed.= 6. Mr. Balabantaray, learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter affidavit. It is contended that in view of the decision of the Hon’ble Apex Court in the case of Jitendra Kumar Singh, even though the Opp. Party No. 7 availed the benefit of age relaxation as a SEBC candidate, but since the Petitioner as well as the O.P. No. 7 secured the same mark, O.P. No. 7 being senior in age, he was appointed as against UR vacancy. Mr. Balabantaray further contended that since Opp. Party No. 6 has secured more mark than the Petitioner as well as Opp. Party No. 7, he was selected as against UR vacancy even though he had made his application as a Home Guard. 7. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner while made his application as against UR vacancy, Opp. Party No. 7 made his application as a reserve category candidate SEBC category. Similarly, O.P. No. 6 made his application as against the vacancy meant for Home Guards. Therefore, placing reliance on the decision of the Hon’ble Apex Court in the case of Nirav Kumar Dilipbhai Makwana so relied on by this Court in its Page 4 of 5 // 5 // order dtd.31.01.2023, it is the view of this Court that since O.P. No. 7 availed the benefit of age relaxation having belong to the SEBC category, he should not have been selected/appointed as against the vacancy meant for UR category. 8. Therefore, this Court while holding so, directs the Opp. Party No. 5 to provide appointment to the Petitioner as against UR category with due disengagement of O.P. No.7. However, it is observed that if there is any vacancy available and O.P. No. 7 can be accommodated as against such vacancy, appropriate order can be passed. This Court directs the O.P. No.5 to comply with the order within a period of three (3) weeks from the date of receipt of this order. 9. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 5 of 5