The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.513 of 2016 Rashmi Ranjan Das …. Petitioner -versus-
Legal Reasoning
D.G. and I.G. of Police, Fire Services, Odisha, Cuttack and Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 24.01.2023 Order No 03. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Ms. B.K. Pattnaik, learned counsel for the Petitioner and Mr. D.K. Mohnaty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The present writ petition has been filed with the following prayer:- “i) To direct the respondents to recast the select list of UR & SEBC candidates by selecting SEBC candidates who have secured more mark than UR candidates on the basis of their merit even if they have availed age relaxation. ii) To direct the respondents to appoint the applicant as Fireman. iii) To direct the respondents to grant all financial and consequential benefits flowing from the appointment. iv) And pass such other order/orders as may be deemed fit and proper for the interest of justice.” // 2 // 4. It is contended that the Petitioner made his application as a SEBC candidate and had only availed the benefit of age relaxation. Accordingly since the Petitioner had secured more mark than the UR candidate, he should have been selected. 5. Mr. D.K. Mohanty, learned ASC on the other hand contended that since the Petitioner had availed the benefit of age relaxation as a reserve category candidate, his claim cannot be considered as against UR vacancy in view of the decision of the Hon’ble Apex Court reported in the case of Nirav Kumar Dillipbhai Makwana v. Gujarat Public Service Commission and Others reported in (2019) 7 SCC 383. Hon’ble Apex Court in Para 22 to 24, 27, 30 & 34 of the decision has held as follows:- “22. Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time. 23. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances the written examination etc., then candidate of such category selected in the said manner, shall have to be considered against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post. in 24. Now, let us consider the judgment in Jitendra Kumar Singh (supra). In this case, this Court was considering the interpretation of Sub−section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub− section (6) of Page 2 of 4 // 3 // Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under: "3(6) If a person belonging to any categories mentioned in sub−section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub− section (1)”. xxx xxx xxx 27. In Deepa (supra), the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under: "3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies." xxx xxx xxx 30. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under: "32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25−3−1994 has to be confined to scheme which was under consideration, statutory scheme and intention of the State Government as indicated from the said scheme cannot be extended to a State where the State circulars are to the contrary especially when there is no challenge before us to the converse scheme as delineated by the Circular dated 24−6−2008." Xxx xxx xxx 34. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the Page 3 of 4 // 4 // preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.” 6. In view of such position, this Court is not inclined to entertain the prayer as made in the writ petition. Accordingly, the writ petition is dismissed. Sneha (Biraja Prasanna Satapathy) Judge Page 4 of 4