The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31912 of 2021 Biswajit Khuntia …. Petitioner Mr. R.N. Mishra, Advocate -Versus- State of Odisha and others …. Opposite Parties Mr. S. K. Swain, AGA And W.P.(C) No.31916 of 2021 Kamalakanta Patri …. Petitioner Mr. R.N. Mishra, Advocate -Versus- D.G. and I.G. of Police, Orissa, Cuttack and others …. Opposite Parties Mr. S. K.Swain, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF HEARING:11.07.2025 DATE OF JUDGMENT:13.10.2025 1. Both the writ petitions have been clubbed together since similar question is involved, hence, are disposed of by the following common judgment. 2. Instant writ petitions are filed by the petitioners challenging the impugned orders dated 16th December, 2014 Page 1 of 8 as at Annexure-2 and to declare the consequential action of opposite party No.3 in discharging them from service as illegal and untenable in law and further to quash the orders dated 16th March, 2020 at Annexure-10 &9 respectively with a direction to the opposite parties to issue orders of reinstatement/appointment in their favour as Assistant Drivers against the vacancies caused due to non-joining of the Home Guards out of 44 selected candidates and on the grounds stated therein. 3. According to the petitioners, an advertisement was published by opposite party No.3 inviting applications for the posts of Assistant Driver from eligible candidates having the requisite qualification fulfilling other criteria fixed and they being candidates in the Home Guard category applied and participated in the selection process and at last, a merit list of 397 candidates was prepared and were selected as such and issued with orders of appointment on 18th November, 2013 vide Annexure-1 and were directed to report on 20th November, 2013. It is pleaded that the advertisement was for 437 posts including 46 posts to be filled up from among the candidates of Home Guard category but such selection was
Legal Reasoning
challenged by one Chinmaya Bhola and others in O.A. No.3931(C) of 2013 and batch of cases filed before the
Decision
Odisha Administrative Tribunal and it was disposed of on 7th May, 2014 with a direction to prepare a fresh select list keeping in view the principles of horizontal reservation, whereafter, opposite party No.2 passed an order dated 16th December, 2014 directing opposite party No.3 to discharge Page 2 of 8 the petitioners from service, which is a decision per se illegal and in violation of the principles of natural justice. 4. In fact, the petitioners were selected against the vacancies for Home Guard (UR) category but the list was prepared without following the reservation rules, hence, they were discharged from service later to the order in O.A. No.3931(C) of 2013. It is pleaded that thereafter, O.A. No.4321(C) of 2014 was filed and disposed of on 20th August, 2015, wherein, direction was issued to prepare a fresh merit list following the principles laid down in Jitendra Kumar Singh and another Vrs. State of U.P. and others; and R.K. Sabharwal and others Vrs. State of Maharashtra and others (1995) 2 SCC 745 in terms of the decision in O.A. No.3931(C) of 2013 and to terminate the services of any such candidates, who have secured less marks concluding the exercise within the stipulated period. Accordingly, the select list was redrawn but the petitioners’ names did not find place therein, as further pleaded, whereafter, O.A. No.3032(C) of 2016 was filed and since, three of the Home Guard candidates did not join as intimated, the same was disposed of on 23rd April, 2018 with an order to accommodate them against such vacancies, whereafter, the State challenged it in W.P.(C) Nos.4063 and 4069 of 2019 disposed of on 26th November, 2019 with a direction to the authority concerned to pass appropriate order after being informed for having no any vacancy available for any such adjustment. Page 3 of 8 5. As per the petitioners, even though, they belong to the UR category and the vacancies are for SEBC candidates, any such vacancies left out are to be treated as vacancies for the Home Guards not belonging to SEBC category exclusively and therefore, the decision as per Annexure-10 is not sustainable as it is on the premise that reservation rules do not permit a UR category candidate to be adjusted against any such vacancy meant for SEBC candidates though vacancies are available due to non-joining of SEBC candidates and finally concluding that there is no vacancy in UR category either to adjust the petitioners. 6. Opposite party Nos.2 and 3 filed the counter affidavit and it is pleaded that the quota for the Home Guards is a horizontal reservation and in so far as, the petitioners are concerned, they were found not eligible after the select list was redrawn and that apart, all 44 vacancies of Home Guards have been filled up by candidates, who secured more marks than them. It is also pleaded that 219 UR candidates were selected against 437 posts and since, all the selected candidates joined, no post remained vacant in that category nor in the category of SEBC and therefore, the petitioners, who belong to the general category could not find place in the revised select list. 7. Besides the grounds of challenge herein, the plea of the petitioners was to accommodate them against the vacancies of SEBC category, which could not be filled up as three of the Home Guards selected did not join, the fact, which was Page 4 of 8 denied later at the time of disposal of W.P.(C) Nos.4063 and 4069 of 2019 and finally, confirmed by the impugned orders as at Annexures-10 and 9 respectively. 8. Heard Mr. Mishra, learned counsel for the petitioners and Mr. Swain, learned AGA for the State. 9. On a reading of the impugned orders as at Annexures-9 and 10, the Court finds that opposite party No.2 consequent upon the orders in W.P.(C) Nos.4069 and 4063 of 2019 and while complying the directions issued therein concluded that 44 Home Guard candidates were selected against the vacancies reserved for them and as to the petitioners, they have secured 39.5 and 39 marks, whereas, the cut-off mark for the Home Guards was 40, hence, none could be selected finally despite recast of the select list and admittedly, three of the candidates of SEBC category among the Home Guards did not join and remained unfilled but they belong to UR category and as per the reservation rules, general candidates cannot be given appointment against the vacancies meant for SEBC category and hence, have not been appointed. 10. Originally, the petitioners were selected but subsequently, their services stood terminated and finally, both could not find their place in the select list redrawn. Even though before the learned Tribunal, it was informed that vacancies are available since three of the Home Guard candidates did not join, lastly, this Court on being intimated as to absence of any such vacancies, while disposing of W.P.(C) Nos.4069 and 4063 of 201directed opposite party Page 5 of 8 No.2 to pass appropriate order. In fact, pursuant to the orders in O.A. Nos.3931(C), 3932(C) and 3933(C) of 2013 of the learned Tribunal, the merit list was freshly prepared applying 10% horizontal reservation for Home Guards and upon such recast, the petitioners though initially selected were excluded. Thereafter, the petitioners filed O.A. Nos.3032(C) and 3016(C) of 2018 demanding their continuance in service as Assistant Drivers and with an order dated 23rd April, 2018, it was directed for the authority concerned to consider and to accommodate them against the available vacancies, only if, they are otherwise eligible and suitable for appointment. The said order was challenged in W.P.(C) Nos.4069 and 4063 of 2019 which led to the passing of the orders dated 6th December, 2019 and 26th November, 2019 at last followed by the impugned decision vide Annexures-10 and 9 with a conclusion that the vacancies are not available for the UR category and the petitioners cannot be adjusted against any such vacancies of SEBC category. 11. The moot question is, whether, a candidate, who is availing a horizontal reservation can claim any such vacancy in respect of one of the categories to which he does not belong? According to Mr. Mishra, learned counsel for the petitioners, such adjustment is permissible in view of the non-joining of three of the Home Guards of SEBC category. The Court is of the humble view that the contention as advanced by Mr. Mishra, learned counsel that the vacancies of SEBC category could be filled up by the petitioners, who belong to UR category, is unacceptable for the following Page 6 of 8 reasons. A vertical reservation is provided for social categories and vacancies of such categories cannot be claimed by the general candidates. As to the horizontal reservation, it applies to the special categories, such as, Home Guards etc. and operates within each vertical category. If in case, any such unfilled vacancies remained in a particular category, it has to be allocated in the manner like if a vacancy for a horizontal sub-category of SEBC Home Guards remained and could not be filled up with no suitable candidate being available, it reverts to the non-reserved SEBC category and not to the general category. So to say, UR category candidates cannot claim horizontal reservation against SEBC vacancies that are left unfilled. In fact, horizontal reservation is applied within and not across different social reservation categories. The above view finds support from a decision of this Court in Prangya Paramita Harichandan Vrs. Orissa University of Agriculture and Technology and others in W.P.(C) No. 14758 of 2015 decided on 28th February, 2023, wherein, it has been concluded that a candidate with horizontal reservation (therein for Women) from SEBC category cannot be accommodated in the unreserved UR category as horizontal quota can only be filled by candidates from within that specific vertical category. Therefore, even by considering the fact that three of the vacancies in SEBC category were available, the petitioners since belong to UR category could not have availed the horizontal reservation as Home Guards against such unfilled vacancies meant for SEBC candidates. Page 7 of 8 The Court is, therefore, inclined to uphold the decision of opposite party No.2 with a conclusion that the petitioners as UR category candidates cannot demand any such selection as against three unfilled Home Guard vacancies of SEBC category as there can be no such reservation across the categories and the same is in consonance with the law laid down by the Apex Court in Rajesh Kumar Daria Vrs. Rajasthan Public Service Commission and others (2007) 8 SCC 785. 12. Hence, it is ordered. 13. In the result, the writ petitions stand dismissed. (R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC,CTC Date: 16-Oct-2025 11:51:20 Page 8 of 8