The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1545 of 2018 Sudarshan Mohanta …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.01.2023 Order No 06. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
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. The present writ petition has been filed inter alia with the following prayer:- “i) To direct the respondents to select the applicant as Jail Warder under Homeguard category. ii) To direct the respondents to grant all financial and the date of consequential benefits flowing appointment of other candidate to response advertisement under Annexure-1. from in iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice.” 4. Learned counsel for the Petitioner contended that the Petitioner was working as a Home Guard in the district of Keonjhar, he made his application for the post of Jail Warder pursuant to the advertisement issued by the Odisha Sub-ordinate Staff Selection // 2 // Commission under Annexure-1 on 22.12.2017. Learned counsel for the Petitioner brought to the notice of this Court the eligibility criteria prescribed under Para 3(ii):- “There shall be as nearly as may be but not more than 10% reservation of notified vacancies of each circle for Home Guards and such persons when selected shall be adjusted against the categories to which they belong. But a Home Guard to be eligible for application must have (a) passed Higher Secondary (10+2) or equivalent examination, (b) completed three years of enrolment without interruption on the date of publication of advertisement, (c) undergone Basic Course of Training for Home Guards and (d) must not be more than 30 years of age as on the date of publication of advertisement.” 5. it is accordingly contended that by the time the Petitioner made is application as against the vacancy available for Home Guard, he was within the prescribed age i.e. 30 years. Learned counsel for the Petitioner also brought to the notice of this Court the application made by the Petitioner under Annexure-3, wherein he has specifically indicated that he has made the application as a Home Guard candidate. It is also contended that even though the Petitioner qualified the examination, but his case was not recommended for appointment, on the ground that he has availed the benefit of age relaxation as a SEBC candidate. It is also contended that as against the three (3) vacancies meant to be filled up from amongst eligible Home Guards, only two (2) posts were filled up and the other post has not yet been filled up till date. Mr. Sethi also contended that the Tribunal while issuing notice of the matter passed an interim order that any appointment pursuant to the Page 2 of 7 // 3 // advertisement if not appointed already shall be subject to the result of the matter. 6. Mr. Balabantaray, learned AGA on the other hand made his submission basing on the stand taken by the O.P. Nos. 2 and 4 in their respective counters. Learned AGA vehemently submitted that in the application submitted under Annexure-3 the Petitioner has indicated his category as SEBC and accordingly he was extended with the benefit of age relaxation being a SEBC candidate as the prescribed age for the post in question was 18 years to 25 years as on 31.01.2017. It is also contended that by the Petitioner made his application his age was 29 years 25 days and the said fact is reflected in Annexure-3. Accordingly, it is contended that since the Petitioner had availed the benefit of age relaxation as a SEBC candidate, he cannot be considered as again UR vacancy. 7. Mr. Balabantaray, learned AGA also brought to the notice of this Court the stand taken by the Opp. Party No. 2 in Para 8 of the counter affidavit and the same is reproduced hereunder:- “That, in reply to averments made in Paragraph-6.5, it is submitted that in the advertisement for the post of warder, the vacancies reported for Baripada Circle cadre for direct recruitment are 29 and the break up categorywise vacancies are UR-20, UR(W)-4, ST-3,SC-2, Ex-Serviceman-1 and Home Guard-3 for the posts of Warder. The petitioner belongs to SEBC category candidate and seeking reservation under special category of Home Guard as per his application form submitted online at Annexure-3 to the writ application. But, no vacancy has been reported under SEBC category in the post of Warder. Sri Sudarshan Mohanta, Le the petitioner was a candidate bearing Application NO.KJ139717WRD-00000274 under Baripada Circle has applied for the post of Warder as a Home Page 3 of 7 // 4 // Guard under SEBC Category. There is no vacancy under SEBC category. The Commission have prepared circle- wise merit list and select list according to Odisha Sub-ordinate Jails Service (Methods of Recruitment and Conditions of Service of Warder) amendment Rules, 2015 rules in force and not as a state cadre as alleged by the petitioner. Para -4 of the Odisha Sub-ordinate Jails Service (Methods of Recruitment and Conditions of Service of Warder) amendment Rules, 2015 reads thus: "In the said rules, in rule-5, (i) the existing rule shall be re-numbered as sub-rule(1) thereof (ii) after sub-rule(1) so renumbered the following sub-rules shall be inserted, namely:- "(2) Rule of reservation in posts and services shall be followed Circle Cadre wise. (3) There shall be as nearly as may be but not more than 10% reservation of notified vacancies in the rank of Warder in each Circle for Home Guards in each recruitment year and such persons when selected shall be adjusted against the categories to which they belong. (4) The unfilled reservation quota for such reserve category would not be carried forward to the subsequent year and filled- up by direct recruitment" In this recruitment, 02 posts of Home Guard i.e. one for SC and one post for ST have been filled up against the vacancies of 3 posts in Baripada Circle cadre. Due to non-availability of required eligible Home Guard candidate belong to their reservation category, one vacant post of Home Guard could not be filled up. As a result all candidates have been selected as per merit according to Para-5(4) of the said rules. Page 4 of 7 // 5 // The OSSSC, the Opp. Party No.2 have conducted the selection process as per rules and regulation in force and have not committed any irregularity. Thus the allegation made by the applicant that the commission have illegally and arbitrarily diverted Home Guard posts to non-Home Guard candidate, are false, imaginary, baseless and hence denied. A copy of the extract of Odisha Sub-ordinate Jails Service (Methods of Recruitment and Conditions of Service of Warder)Rules, 2012 as amended and updated videOdisha Sub-ordinate Jails Service (Methods of Recruitment and Conditions of Service of Warder) amendment Rules, 2015is enclosed at Annexure-A. Further, it is respectfully submitted that the select list and results have been published as per clause 11 and 13 of the advertisement for the post of warder. Clause 11 & 13 are spelt out hereunder. 11. "Select list & Results: The select lists of successful candidates shall be prepared separately for each Circle for which they have applied. The lists shall be prepared category- wise in order of marks secured by them in the Physical Efficiency Test, Written Test, +2 examination if passed in 1st attempt and marks awarded for NCC Certificate, achievements in National/ International Sports and contractual work experience in Government of Odisha organisation as defined in the Odisha Group-C and Group-D posts (Contractual Appointment)Rules, 2013." 13. Publication of Results: The final results shall be published in due course in the OSSSC website: www.osssc.gov.in. Hence, the final select list has been published circle-wise in the website of OSSSC.” 8. Similarly, the stand taken by the Opp. Party No. 4, in Para 4 & 5 of its counter are quoted hereunder:- Page 5 of 7 // 6 // “That in reply to the averments made in Para-6.2 of the writ petition, it is most humbly submitted that basing on the requisition, the advertisement for the post of Jail Warder was by Odisha Sub-Ordinate Staff Selection published by Commission, Bhubaneswar in their official website inviting application from the eligible petitioners in the state, wherein 29 vacancies were notified in respect of Baripada Circle and out of total vacancies 4 posts are reserved 1 post is reserved for Ex Servicemen and 3 post re reserved for Homeguard. The copy of advertisement is annexed herewith as Annexure-1. 5. That it is humbly submitted by the answering opposite Party that the petitioner belong to SEBC category and has applied for the post of Warder as a Homeguard under SEBC Category which reveals at Annexure-03 to the Writ petition. It is settled principle of law is that once a candidate availed concession under the reservation quota, he cannot be claimed for benefit under the un-reserved quota.” 9. I have heard Mr. G.R. Sethi, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. On the consent of both the Parties, the matter was finally heard at the stage of admission and disposed of vide the present order. 10. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that in the advertisement issued under Annexure-1 the prescribed age for making an application as a Home Guard is 30 years of age as on the date of the publication of the advertisement. As reflected in Annexure-3 the Petitioner made his application as a Home Guard candidate and as on the date of making of application the Petitioner was below 30 years of age. Page 6 of 7 // 7 // 11. Therefore, the stand taken by the Opp. Parties that the Petitioner since availed the benefit of age relaxation as a SEBC category his claim cannot be considered as against UR vacancy is not sustainable in the eye of law. Since this is the only issue on which the Petitioner has not been considered, this Court while disposing
Decision
the writ petition, directs the O.P. No. 4 to consider the case of the Petitioner for the post of Jail Warder pursuant to the advertisement issued under Annexure-1 taking into account his candidature as a Home Guard candidate and not as a SEBC candidate which has been wrongly done by the Selecting Authority. Since it was contended by the learned counsel for the Petitioner that one post has not yet been filled up, taking into account the same as well as the interim order passed by the Tribunal on 13.07.2018, O.P. No. 4 is directed to take a decision as directed hereinabove within a period of two (2) months from the date of receipt of this order. On such consideration if it is found that the Petitioner is otherwise eligible, necessary consequential action be taken by providing appointment to the Petitioner as against the available vacancy meant for Home Guards. 12. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 7 of 7