The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.1289 of 2017 Sasmita Palai …. Petitioner Ms. P. Rath, Sr. Advocate along with Mr. S. Rout, Adv. State of Odisha & Others -versus- …. Opposite Parties Mr. P.K. Panda, ASC Mr. S. Mallik, Adv. (O.P. No.4) Mr. G.P. Dutta, Adv. (O.P. No.2) WPC (OAC) No.495 of 2019 Lokanath Prasad Palai Petitioner Mr. S. Mallik, Adv. …. State of Odisha & Others …. -versus- Opposite Parties Mr. P.K. Panda, ASC Mr. B.P. Tripathy, Adv. (for O.P. No.2) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 06.11.2024 Order No. 9. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the Parties. 1 3. Since the issue involved in both the writ Petitions are identical, both the matters were heard analogously and
Decision
disposed of by the present common order. 4. It is the case of the Petitioners in both the cases that pursuant to the advertisement issued by the Odisha Public Service Commission (in short, “the Commission”) vide advertisement No.3 of 2015-16, Petitioners made their applications as against the Post of Assistant Executive Engineer (Civil) having belong to Sports category. 4.1. It is contended that out of the vacancies indicated in the Advertisement at 232, seven (7) posts were reserved for candidates having belong to Sports Category. It is further contended that as prescribed in Para-6 of the Advertisement, selection of candidates for recruitment to the above post shall be made on the basis of objective type Written test and Viva- Voce Test 4.2. Learned Senior Counsel appearing for the Petitioner in W.P.(C) No.1289 of 2017, placing reliance on the Resolution issued by the Government in the General Administration Department on 18.11.1985 under Annexure-2 vide Para-5 contended that a candidate who intends to make his application as a Sports category candidate has to produce the Identity Card issued in his/her favour by the Director, Sports at the time of his/her appointment against the Post reserved for them. It is also contended that as provided under Rule-2(i) 2 of the Odisha Engineering Service (Methods of Recruitment and Condition of Service) Rules, 2012, a “Sportsperson” means, a person who would be issued with Identity Card as Sportsmen by the Director, Sports as per Resolution dated 18.11.1985 of the General Administration Department. 4.3. It is contended that as provided under Para-5 of the Resolution dated 18.11.1985 and Rule-2(i) of the aforesaid Rules, a candidate who intends to make an application as having belong to sportsman category was required to produce the Identity Card so issued by the Director of Sports. But in terms of the Advertisement so issued under Annexure-1, Petitioners in both the cases though made their applications as against the Sports Category candidate, but they were not called for the viva-voce test even though 17 candidates were called in that category to take the test. It is further contended even though 7 posts were earmarked for candidates belonging to Sports category, but out of those 17 candidates who were called to take the viva-voce test, only 2 (two) candidates were selected on the ground that those 2 candidates were having the Identity Card issued in favour of them by the Director of Sports. 4.4. It is contended that since out of 17 candidates who were called to take the viva-voce test, only 2 candidates were having the Identity Card, Petitioners in both the cases though were having the Identity Card with them and had produced their Identity Card along with their applications, they should 3 have been called to take viva-voce test in view of the stipulation contained in the Resolution under Annexure-2 and the Rule as cited supra. 4.5. It is contended that because of the wrong committed by the Commission in calling 15 numbers of candidates belonging to Sports Category without having the Identity Card to take the viva-voce test, Petitioners were deprived from the purview of the selection and accordingly to get the benefit of appointment as against Sport Category candidate. 4.6. It is further contended that challenging such action of Commission in not calling eligible sports category candidates, various matters were filed before this Court as well as before the Tribunal and pursuant to the order passed by this Court as well as by the Tribunal, Petitioners in all those cases were asked to appear the viva-voce test and after qualifying the test, they have been provided with the appointment by different orders issued on 17.11.2020, 05.10.2023, 09.11.2023 and 16.07.2024. It is accordingly contended that because of the fault committed by the Commission, Petitioners though were having the required identity card with them, were not called to appear the viva- voce test while calling 15 ineligible candidates to appear the viva-voce test, out of the total 17 candidates so called by the Commission. It is accordingly contended that appropriate direction be issued to the Commission to conduct the viva- voce test in respect of the present two (2) Petitioners and to 4 provide them appointment, if they come out successful. It is also contended that during pendency of the Writ Petition, both the writ Petitioners have got the benefit of appointment vide order dated 17.06.2021 and 09.10.2023. But Petitioners in W.P.C(OAC) 495 of 2019 has been appointed as an Assistant Engineer. 5. Mr. B.P Tripathy learned counsel appearing for the commission along with Mr. G.P. Datta in both the cases on the other hand contended that though there is no dispute that both the Petitioners made their applications as against sports category, but since both the Petitioners failed to secure the cut-off mark so fixed by the Commission, they were not called to attend the viva-voce test. The stand taken in para 6,7,8,10 and 11 of the Additional Counter Affidavit reads as follows: 6. That, it is humbly submitted that in response to the aforesaid advertisement as many as 7880 candidates had applied within the last date fixed for filing online application form. Category wise bifurcation of candidates applied under the impugned advertisement is as follows:- Out of the above 7880 candidates, 03 persons had applied under Ex-Servicemen, 123 Candidates applied under Sports Person Category and 67 candidates applied under PWD category. Sl.No. Category Vacancy Candidates applied 1 2 3 UR SC ST 5 313(104-W) 4719(1646-W_ 43(14-w) 1216(303-W) 227(76-W) 649(172-W) 4 SEBC 74(25-W) 1305(357-W) Total 657(219-W) 7880(2478-W) 7. That, it is humbly submitted that written examination of the impugned recruitment was conducted on dated 30.08.2015. It is the policy decision of the Op. No.2, in absence of specific provisions in the recruitment rules, the candidates are to be called for interview, twice the number of vacancies in each category in case of 03 or more vacancies and 05 candidates to be called for vacancies up to 02 (two). For better clarification of this Hon’ble Court, the is the 0pp. No.2 followed by shortlisting procedure enumerated as follows:- At first candidates were selected from the Open Competition. Thereafter, candidates of the each vertical reservation quota i.e. SC, ST, SEBC were shortlisted. Then, it is found out that how many candidates from the Special Reservation (Horizontal) have been shortlisted on the above basis. Having done so:- a. if the quota fixed for horizontal reservation is already satisfied- no further question ofselection arises. b. If it is not so satisfied, the requisite number of horizontal reservation candidates shall have to be taken and adjusted/accommodated against their vertical reservation categories by deleting the correspondence number of candidates there from. of The process verification c. and adjustment/accommodation as stated above should be applied separately for each of the vertical reservation wherever required. In such a case, the reservation in favour of horizontal categories, overall, may be satisfied or may not be satisfied. (Emphasis Supplied) Following the aforesaid provisions, the 0pp. No.2 had shortlisted altogether 1357( 447-W) Nos. candidates for Viva Voce Test. The category wise bifurcation candidates Voce Test were as follows:- 6 Sl.No Category Nos. of vacanc Nos. Remark Advertised candidates shortlisted f viva voce Test 1 2 3 4. UR SC ST 313(104-W) 651(213-w) 43(14-w) 94(31-w) 227(76-w) 458(149-w) SEBC 74(25-W) 154(54-w) Extra candidates called for due to equal marks at the cut -off point. Total 657(219-w) 1357(447-w) 8. That pursuant to the aforesaid advertisement, 123 II numbers of applications were received under Sports Person Category, whereas, only 14 (7 vacancies x 2 = 14) candidates were required to be shortlisted for the Viva Voce Test, there was no need for the 0pp. No.2 to call all the 123 candidates for document verification. However, after short listing, it was found that more than 14 candidates i.e. 17 Nos. of candidates were already there under Sports Person category for Viva Voce Test. Last candidate shortlisted for Viva Voce Test under Sports Category had secured 128 marks in the written examination. Since, the petitioner, Sasmita Palai had secured only 118 marks in the written examination; she could not shortlisted for document verification and Viva Voce Test. xxx xxx xxx 10. That, Sports Person category is a Horizontal Vacancy and to be adjusted against their respective vertical vacancy in the case of non-availability of eligible candidates. Since, except those 2 candidates, no other candidates from the 17 7 candidates were having valid sports certificate, the remaining 5 vacancies had been filled up from the eligible meritorious candidates of the respective vertical vacancy. Hence, there was no vacancy left under Sports Person category in the impugned advertisement to recommend. 11. That, challenging the aforesaid decision of the 0pp. No.2, the petitioner had filed an Original Application bearing No.221 (C )/2017 before the Hon’ble OAT and the Hon’ble OAT while disposing of the aforesaid had directed as follows: ********** we direct the respondent No.2 to consider the case of the applicant under Sports category, if she has furnished Sports Certificate along with her application, which is issued in accordance with the Resolution dt.18.11.1985 and if she succeeds, her name be recommended for appointment to the post of Asst. Executive Engineer ( Civil) as has been in the case of four other candidates ( during pending of W.P.(C) No. 8063/2016), subject to final outcome of W.P.(C) No. 8063/2016 and batch cases, within a period of one month from the date of receipt of a copy of this order. Action taken in the matter be communicated to her soon thereafter. It is however, made clear that such consideration be made if posts are available in Sports category and the applicant is found otherwise eligible and suitable only in Sports category’. ” 5.1. It is contended that since out of 7 vacancies earmarked for Sports Category, 17 candidates were called and Petitioners having not secured the cut-off mark were not called to appear the viva-voce test, no illegality or irregularity can be found with the process of selection so conducted by the Commission. It is also contended that out of 17 candidates so called in the category in question, at the time of document verification, 2 candidates were found to have the valid Identity Card so issued by the Director of Sports and accordingly those 2 candidates were provided with the appointment vide order dated 26.10.2016 on being recommended by the Commission. 8 It is contended that no illegality or irregularity can be found in the process of selection so conducted by the Commission. 6. Having heard learned counsel for the Parties and considering the submissions made this Court finds that both the Petitioners made their applications for selection to the Post of Assistant Executive Engineer (Civil) pursuant to advertisement issued by the Commission under Annexure-1 vide Advertisement No.3 of 2015-16. Both the Petitioners made their applications as against Sports category candidate and in the advertisement so issued, 7 posts were earmarked in that category. 6.1. As found from Annexure-2 resolution vis-(cid:224)-vis Rule- 2(i) of the Rules, a Sports category candidate is required to produce the Identity card issued in his/her favour by the Director, Sports. But as found from the Additional Counter Affidavit so filed by the Commission, as against 7 posts meant for Sports category, though 17 candidates were called to appear the viva-voce test, but out of 17 candidates, 15 candidates were not having the Identity Card available with them. Since as provided under the Resolution and the Rules, a candidate in Sports category is required to produce the Identity Card issued by the Director, the Commission without proper verification of the same could not have called 15 ineligible candidates in that category to take the viva-voce test, 6.2. In view of such, conduct of the Commission as per the considered view of this Court is contrary to the provisions 9 contained under the Resolution issued under Annexuure-2 and the Rules governing the field. Had the commission followed the Rules and the Resolution in its proper perspective, Petitioners in both the cases could have been allowed to take the viva-voce test. 6.3. In that view of the matter and placing reliance on the orders passed in different writ Petitions by this Court and consequential benefit of appointment issued in favour of the Petitioners therein, this Court while disposing the Writ Petition directs the Commission to conduct a viva-voce test afresh in respect of both the Petitioners by the panel who conducted the viva-voce test pursuant to the recent order passed by this Court on 29.01.2024 in W.P.(C) No.37859 of 2020. If on such conduct of the viva-voce test, both the Petitioners qualify and found eligible to get the benefit of appointment, taking into account the fact that Petitioner in WPC (OAC) No.1289 of 2017 has already been appointed as against the post in question vide order dated 17.06.2021, he will be provided with the appointment from the date persons similarly situated were appointed vide order dated 26.10.2016, but with extension of the financial benefit on notional basis till 17.06.2021. Petitioner No.2 taking into account his appointment as an Assistant Engineer w.e.f 09.10.2023, he be provided with appointment from the date similarly situated candidates were appointed vide Order dt.26.10.2016, but he will be extended with the benefit all through on notional basis. 10 6.4. This Court directs the Commission to complete the entire exercise within a period of 2 (two) months from the date of receipt of this Order. On receipt of the recommendation only from the Commission, Opposite party No.1 is directed to issue order of appointment in favour of both the Petitioners within a further period of 4 weeks with the conditions as enumerated here-in-above. Both the Writ Petitions are accordingly disposed of. Photocopy of the order be placed in the connected case. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 13-Nov-2024 12:13:52 11