(An application under Articles 226 & 227 of the Constitution of India.) Deba Bisi v. State of Odisha and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28320 of 2022 (An application under Articles 226 & 227 of the Constitution of India.) Deba Bisi …… Petitioner Versus State of Odisha and others …... Opposite Parties Advocate(s) appeared in this case :- For Petitioner For Opposite Parties : : Mr.R.K.Sarangi, Advocate Mr.G.Tripathy, Addl. Government Advocate Mr.K.Swain, Advocate (For O.P.No.5) CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 16th September 2025 B.P. Routray,J. 1. Heard Mr.Sarangi, learned counsel for the Petitioner and Mr.Swain, learned counsel for Opposite Party No.5 as well as Mr.Tripathy, learned Additional Government Advocate for the State. 2. The Petitioner is an applicant for the post of B.A. B.Ed. Trained Graduate Teacher pursuant to the advertisement dated 26th December 2021 (Annexure-2) published by the Office of Collector and District Magistrate, W.P.(C) No.28320 of 2022 Page 1 of 11
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 Nabarangpur. In the said advertisement under Annexure-2, several teaching posts were advertised and the Petitioner applied in respect of the post of B.A. B.Ed Teacher. Total number of vacancies were 11 for the said posts where 4 posts are under U.R. Category, 1 post for U.R. (W), 1 post for S.C. and 1 post for S.C. (W), 3 posts for S.T. and 1 post for S.T.(W). 3. Pursuant to the selection process undertaken, the provisional select list was published on 2nd September 2022 under Annexure-4 showing the name of the Petitioner (Deba Bisi), securing 50.00 marks under U.R. Category. Thereafter the revised merit list of qualified candidates was published on 15th October 2022 on the basis of guideline issued by the Government of Odisha in SC & ST Development Department in order dated 13th September 2022 under Annexure-5. As per the said guideline issued under Annexure-5, the Government clarified the selection procedure as has been provided in the Draft Model Advertisement suggesting the fact that selection of suitable candidates should be based on the basis of results of written examination and marks secured in the said written examination. In cases of two or more candidates securing the same marks, the candidates belonging to the district should be given preference over other candidates and thereafter if the tie still continues, then the preference should be given as indicated in para 6(i)(ii) and (iii) of the Draft Model Advertisement. W.P.(C) No.28320 of 2022 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 4. According to the revised merit list dated 15th October 2022, the Petitioner’s name was not found as selectee in respect of B.A. B.Ed. Trained Graduate Teacher post and the last selected candidate in the U.R. Category secured 53.50 marks. 5. The Petitioner challenges the same in present writ petition and it is
Legal Reasoning
submitted by Mr.Sarangi, learned counsel for the Petitioner that when the advertisement under Annexure-2 speaks for preference to the candidates of Nabarangpur district, removal of his name from revised merit list giving appointment to a candidate outside Nabarangpur district is against the principles of preference narrated in the advertisement and therefore his name should be included in the merit list. He further submits that though total number of 11 posts in B.A. B.Ed. Category was advertised for, but as per the revised merit list only 7 posts out of the same were filled up, leaving four other posts vacant and against such posts the Petitioner can be appointed without disturbing the selection of the present Opposite Party No.5. 6. It needs to be stated here that the present Opposite Party No.5 is the candidate belonging to Subarnpur district who secured 54 marks and selected against U.R.-3 post in B.A. B.Ed. Category. W.P.(C) No.28320 of 2022 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 7. Opposite Party No.5 as well as the State-Opposite Parties have filed their respective counter affidavits denying the claim of the Petitioner to be appointed in the post on the preference claimed by him for belonging to the district of Nabarangpur. It is submitted by the Opposite Parties that the preference as stated in the advertisement under Annexure-2 cannot be compromised with merits of the candidates. 8. As per the admitted facts, the Petitioner was an applicant in respect of the advertisement under U.R. Category in respect of the post of B.A. B.Ed Trained Graduate Teacher, and the advertisement was issued in respect of Nabarangpur district. Clause 6 of said advertisement dated 28th December 2021(Annexure-2) is reproduced below: “6. Selection Procedure: All selection of teaching staffs shall be done through written examination (Multiple Choice Question) comprising of 100 marks based on OMR. Eligible candidates who meet all the requisite qualification and criteria shall be shortlisted for appearing in the written examination. The Selection will be made by the District Selection Committee headed 'by the District Collector, Nabarangpur with Inspector of Schools (SSD) arid District Welfare Officer (Member Convenor) as members of the Committee as per Notification No. - S.R.O. No. - 1169 / 93 / Dt. 13,12.1993 of ST & SC Development Department. The Selection Committee shall prepare the list of suitable candidates on the basis of the results of written examination. The names of the candidates shall be arranged W.P.(C) No.28320 of 2022 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 according to the marks secured in the written examination. Minimum cut-off mark for UR category is 35 and for Reserved Category is 30 out of the total 100 marks. Preference will be given to the candidates belonging to the same district. (i) (ii) In case of two or more candidates secured the same marks the candidate older in age will be placed above in the rank. If there is further tie, the higher percentage of marks secured in training qualification will be taken in to account. (iii) Higher Education will not be given any weightage during preparation of merit list in all categories.” 9. The subsequent revised select list is dated 2nd September 2022 and it is based on the guideline issued by the Government dated 13th September 2022 as per the Draft Model Advertisement. It is true that in the first selection list under Annexure-4 though name of the Petitioner was found place but in the revised merit list his name was removed having secured less mark than the last selected candidate. The reason of revision as per the Opposite Parties is wrong interpretation of the preferential clause. As per the clarification under Annexure-5, the selection of suitable candidates should be based on the basis of marks secured in the written examination. In this context, if Clause 6 of the advertisement under Annexure-2 is looked into again, it is found that W.P.(C) No.28320 of 2022 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 preference will be given to the candidates belonging to the same district. Here Clause-6 does not clarify that such preference will be over and above the merit of the candidates. But the simple reading is that “preference will be given to the candidates belonging to the same district”. 10. It is true that inclusion of the name of the Petitioner in the select list does not confer any right upon him to be appointed and this proposition is well settled in law. The hon’ble Supreme Court has consistently held that inclusion of a candidate's name in the merit list does not confer any indefeasible right to be appointed. (See Shankarsan Dash v. Union of India, (1991) 3 SCC 47 and Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154 ) The question is, as per the preferential clause mentioned in Annexure-2, is it to be interpreted that such preference would be given in respect of a candidate securing less mark than the other, securing more marks, only for the reason that he belongs to the same district ? In other words, a candidate belonging to same district even if secured less marks than another candidate of outer district would be given preference according to the contentions raised by the Petitioner ? Such a proposition is not conceivable of course. It is for the reason that while W.P.(C) No.28320 of 2022 Page 6 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 delineating the preference clause in the advertisement, nothing is stated to compromise on the merits of the candidates. So at no circumstance, the merits of candidates can be compromised to give preference to a candidate securing less marks. The interpretation of the entire clause-6 has depicted in the advertisement to indicate that the said preference would be subject to the merits of the candidates. Therefore, what is clarified in the letter of the Government under Annexure-5 that the preference will come only if two candidates secure same mark cannot be said unjustified. 11. Mr.Sarangi, learned counsel for the Petitioner submits that changing the rules of selection after the selection process was complete is impermissible as held by a catena of decision of the Hon’ble Supreme Court. He refers the decision in Taj Prakash Pathak and others vrs. Rajasthan High Court and others, (2013) 4 SCC 540 and Ankita Thakur and others Vrs. H.P.Staff Selection Commission and others, 2023 SCC OnLine SC 1472. 12. With due respect, it is stated here that all such decisions refered by the counsel for the petitioner are not applicable in present facts. As stated earlier, in the case at hand, the Petitioner secures 50.00 marks whereas Opposite Party No.5 has secured 54.00 marks and the last W.P.(C) No.28320 of 2022 Page 7 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 selected candidate as per the revised select list has secured 53.75 marks in the U.R. Category. Therefore, it is clear that the Petitioner is found less meritorious not only than Opposite Party No.5 but also the last selected candidate in the U.R. Category. Thus at this stage he cannot take advantage of the preferential clause for being a resident of Nabarangpur district to be selected above the other candidates securing more marks than him in the selection tests. In State of U.P. and others vrs. Om Prakash and others, (2006) 6 SCC 474, it is held as follows: “18. This Court again considered the same question in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu [(2003) 5 SCC 341 : 2003 SCC (L&S) 681] and held at SCC pp. 348-49, para 10 as under: “The word ‘preference’ in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. W.P.(C) No.28320 of 2022 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 The ‘preference’ envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis- à-vis others in the matter of actual selection.” 19. In the instant case, the requisite academic qualification for the post of Medical Officer of Homeopathy as prescribed in the advertisement was a recognised degree in homeopathy or a recognised diploma in homeopathy. A proviso has been added that preference will be given to degree-holders. This would mean that a recognised diploma in homeopathy prescribed in the advertisement is also a required minimum educational qualification with which they are entitled to compete with those candidates possessing the degree. The word “preference” would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification W.P.(C) No.28320 of 2022 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-à-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability.” 13. The next question comes to examine is whether revision of the selection list subsequent to preparation of the merit list would be valid in the given facts of the present case. As seen from the facts brought on record that Annexure-5, the clarification of the Government, was issued on 13th September 2022 after noticing some conflicting approach taken by different district authorities in selection of the candidates. Thus, to avoid the ambiguity, it was clarified that preferential clause will only apply when two or more candidates tie at the same merit by securing same marks. Therefore no illegality is seen in such approach to revise the merit list in terms of Annexure-6 series to give higher place to the candidates securing more marks. Mr.Sarangi, learned counsel for the Petitioner further argues that restricting selection to a particular district or by calling names through the Employment Exchange is not unconstitutional or arbitrary and therefore, the preferential selection based on residence of the candidate cannot be said as illegal. Such argument put forth on behalf of the W.P.(C) No.28320 of 2022 Page 10 of 11 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Sep-2025 19:19:32 Petitioner de hors the established principles of law, as settled in various decisions of the Hon’ble Supreme Court as well as this Court, is found unacceptable. 14. So far as the contention of the Petitioner regarding appointment to the vacant posts left in terms of the advertisement under Annexure-2 is concerned, the same is also not found convincing to this Court. It is for the reason that the posts, which were not filled up, are meant for the ST candidates according to the advertisement. The Petitioner though belongs to SCBC Category, but has been considered under U.R. Category for there having no posts reserved for SCBC Category, cannot claim a post reserved for ST candidates. Therefore, the prayer of the Petitioner to consider his appointment in any such vacant posts meant for ST candidates cannot be considered in favour of the Petitioner. 15. In view of the discussions made above, the writ petition, being devoid of merit, is dismissed. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.28320 of 2022 Page 11 of 11